Rent Board Redux
Opinions clash as to whether a master tenant living in another country can still claim their
local rental unit as their primary residence
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 recent
commission meetings. For full rent board agendas and minutes, please visit sfrb.org.
400 Block of Jones Street
The tenants’ petition alleging an unlawful rent increase under the Costa-Hawkins Rental Housing Act was denied. The landlord’s petition for a rent increase under Rules and Regulations Section 1.21 was withdrawn at hearing. The ALJ found that the original occupant no longer permanently resided at the subject unit when the notice of rent increase was served on August 28, 2018, and that the subsequent tenant moved into the subject unit in May 2018 as a subtenant who never paid rent directly to the landlord before service of the August 5, 2018 6.14 Notice and the August 28, 2018 rent increase notice, and that the landlord is entitled to impose an unlimited rent increase pursuant to Civil Code Section 1954.53(d)(2) of Costa-Hawkins and Rules and Regulations Section 6.14.
On appeal, the tenants contend that the original occupant continues to permanently reside in the subject unit; that there must be a determination that an original occupant has permanently vacated before a landlord may impose a Costa-Hawkins rent increase; and that the landlord’s withdrawal of his 1.21 petition was improper.
The attorney for the tenants told the Board that the master tenant is an immigrant from Nepal who testified that he left San Francisco temporarily in 2018 after spending 30 years in San Francisco, because his mother’s medical condition was bad. He said that when the master tenant’s mother improved, he returned to San Francisco in late February 2018 and went back to work, and then left for Nepal in late May 2018. He said that the master tenant testified that he was married on June 30, 2018, and stayed in Nepal in the hopes of starting a family. The attorney said that the master tenant’s absence from the unit is temporary, and asked what facts support that he has permanently moved from San Francisco. He argued that the Rent Ordinance is to be interpreted in a manner consistent with Costa-Hawkins, and the Rent Board has recognized that a tenant can have two homes and still be a tenant in occupancy. He said that the right to have a family is a fundamental right and should not be denied of an immigrant.
Decision: MSF: To grant the appeal and find that the tenant continued to permanently reside in the subject unit at the time the rent increase notice was served (2-3). MSC: To deny the appeal (3-2).
1400 Block of Filbert Street
The tenant’s petition alleging a substantial decrease in housing services was granted. The landlords were found liable to the tenant in the amount of $6,627.66 for unreasonable withholding of consent to a replacement roommate pursuant to Rules and Regulations Section 6.15A for the period of November 1, 2018 through April 30, 2018. The landlords appeal, arguing that their denial of the tenant’s prospective replacement roommate due to her lack of credit-worthiness was not unreasonable since the replacement roommate would be a co-tenant, jointly and severally liable for the full rent payment, and not the tenant petitioner’s subtenant.
The attorney for the landlords told the Board that they did not deny the tenant’s application for a replacement roommate until five days after the email in which the tenant said she had no problem with her roommate being responsible for rent payments. He said that the issue of rent responsibility is a red herring; the petition was about whether the master tenant had to provide income information on her own behalf, and the landlord had the right to deny the applicant as an unqualified potential roommate.
The attorney argued that the Board does not need to decide the question of whether an owner has the exclusive power to decide whether or not a replacement roommate will pay rent to the owner with no veto power on the part of the master tenant; and if the Board had to decide that question, it would have to decide that the owner has the exclusive power to make that decision; and the landlord’s policy of vetting roommates and making them rent-responsible is clearly designed to minimize subtenant rent defaults. He argued that Rent Ordinance Section 37.9(a)(2)(c) still permits evictions for violation of anti-subletting provisions and leases when certain conditions are met; and that the tradeoff is that to preserve the right to exclude unqualified applicants, the landlord has to make them rent-responsible, otherwise, this would render this part of the Rent Ordinance meaningless.
The attorney for the tenant told the Board that the landlord is just trying to bootstrap in rent responsibility; and said that if the landlord’s interpretation was accurate, it would render Rules and Regulations Section 6.15 meaningless. She stated that if the landlord has an absolute right to determine that all new roommates must be rent-responsible, then it completely gets rid of the language in Section 6.15, which says a landlord cannot determine credit-worthiness. The tenant-attorney argued that the landlord mandates by policy that all new roommates must be rent-responsible, that the tenant was informed that if she wanted a roommate, she must bring in somebody who is rent-responsible; and that agreeing to that is coercion. The landlord’s claim that their roommate policy is designed to avoid rent defaults is illogical, she argued, because the policy forces the tenant to pay the rent by herself. She argued that if the tenant could afford the rent by herself, she could afford the rent with a proposed roommate; and that the landlord is not accomplishing anything by insisting that a new roommate be credit-worthy and rent-responsible when they already have an ongoing landlord-tenant relationship.
Decision: To deny the appeal (5-0).
1300 Block of Alabama Street
The landlord appeals the decision denying its request for rescission of a relative move-in (RMI) eviction notice. In the decision, the ALJ found that the tenant vacating a unit pursuant to a buyout agreement does not constitute extraordinary circumstances for purposes of rescinding an RMI eviction notice. On appeal, the landlord argues that rescission should be granted based on extraordinary circumstances because the tenant did not vacate based on the RMI notice, but pursuant to a buyout agreement that was entered into after the RMI notice was served, and the RMI notice was actually rescinded on an earlier date when the related unlawful detainer action was dismissed.
The attorney for the landlord told the Board that the landlord is appealing the denial of a request to rescind an owner/relative move-in (RMI) eviction, and that the issue is the date of rescission of the RMI. She said she did not fill out the request for rescission in a prompt manner and thinks that’s what the ALJ is relying upon, and that the request for rescission should have been done after she dismissed the lawsuit. The attorney said by operation of law, the RMI notice that she created was fatally defective, and that she acted accordingly; she demanded back rent and rent going forward and refund of relocation payments; they did everything that is required to rescind the notice. She said that the rescission request form was unclear, and objected to the ALJ’s response to her appeal, which she claimed was inappropriate.
The representative for the tenant said that the tenant and her family were forced to move out and sign the buyout agreement based on the landlord’s claim that the landlord was going to proceed with another OMI if they didn’t sign the buyout. She said that the day the tenant returned the keys, the landlord yelled at the tenant stating it was her house and that she was going to move in. She requested that the constraints remain in place.
Decision: To deny the appeal (5-0).
To learn more about the San Francisco Rent Board, call 415-252-4602 or go to sfrb.org.
The information contained in this article is general in nature. Consult the advice of an attorney for any specific problem.