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November 16, 1999

November 16, 1999p> 

 

 

MINUTES OF THE REGULAR MEETING OF
THE SAN FRANCISCO RESIDENTIAL RENT
STABILIZATION & ARBITRATION BOARD,

Tuesday, November 16, 1999 at 6:00 p.m. at
25 Van Ness Avenue, Suite 320

I. Call to Order

President Wasserman called the meeting to order at 6:10 p.m.

II. Roll Call

Commissioners Present: Becker; Bierly; Gruber; Hobson; Marshall; Mosser; Wasserman.

Commissioners not Present: Justman.

Staff Present: Grubb; Lee; Wolf.

Commissioners Lightner and Murphy appeared on the record at 6:13 p.m.

III. Approval of the Minutes

MSC: To approve the Minutes of November 9, 1999.

(Becker/Gruber: 5-0)

IV. Remarks from the Public

Landlord Andrew Long informed the Commissioners that he has had original tenants move out of a unit, return several years later, and try to re-claim status as an "original tenant" of the unit. He asked that the Board clarify situations such as this in Rules and Regulations Sections 6.14 and 6.15.

V. Old Business

A. Costa Hawkins (SB 1098)

Deputy City Attorney Marie Blits appeared to continue the Board’s discussion of Senate Bill 1098, which amended the Costa Hawkins Rental Housing Act (California Civil Code Sections 1954.40, et seq.). This recently enacted legislation amends existing Civil Code Section 1954.53 and adds Section 1954.535, resulting in certain rent control provisions for Section 8 units coming under rent control; and revision/clarification of the provisions exempting units with long-term health and safety code violations from Costa-Hawkins. Ms. Blits had recommended mirroring the language of SB 1098 pertaining to Section 8 units in our Ordinance; and the Board agreed that she should draft such amendments for the Board’s approval and forwarding to the Board of Supervisors. However, the Board’s original package of suggested Costa-Hawkins amendments to the Rent Ordinance did not include the health and safety code violation language in Costa-Hawkins because this would effectuate vacancy control. Ms. Blits had agreed to draft amendments including the new language for discussion at this evening’s Special Legislative Session.

The proposed language read, in part, as follows:

"(A) Where the original occupant or occupants who took possession of the dwelling or unit pursuant to the rental agreement with the owner no longer permanently reside there, an owner may increase the rent by any amount allowed by this Subsection to a lawful sublessee or assignee who did not reside at the dwelling or unit prior to January 1, 1996. However, such a rent increase shall not be permitted where:

(i) The dwelling or unit has been cited in an inspection report by the appropriate governmental agency as containing serious health, safety, fire, or building code violations, as defined by Section 17920.3 of the California Health and Safety Code, excluding any violation caused by a disaster; and . . . ".

Commissioner Murphy argued that the code violation language was aimed at jurisdictions that had had vacancy control in the past, such as Berkeley and Santa Monica. He felt that the language was only supposed to apply in the event of a vacancy, whereas the proposed language adds the requirement that there be no code violations on the premises in order to obtain a market rent increase in the event of a sublet. Commissioner Marshall argued that subletting in the context of Costa-Hawkins is equivalent to a vacancy, since the landlord gains the opportunity to set a new rent.

Senior Hearing Officer Tim Lee suggested that the Board change the word "where" in the last line of paragraph (A) to "while", which would have the effect of merely deferring the market rent increase until the conditions were remediated, similar to the Failure to Repair remedy found in Rules and Regulations Section 10.11. With this amendment, the Board passed the following motion:

MSC: To approve the proposed amendments suggested by the Deputy City Attorney to conform the Rent Ordinance with SB 1098 and forward them to the Board of Supervisors as part of the package of suggested amendments to conform the Rent Ordinance to the Costa-Hawkins Rental Housing Act. (Lightner/Gruber: 5-0)

B. Rules and Regulations Section 6.15 (Leno Legislation)

Commissioner Marshall had distributed a re-draft of Rules Section 6.15 which would conform the procedures for obtaining a replacement roommate in the event of an absolute prohibition against subletting with those contained in Rules Section 6.15, in accordance with recent legislation sponsored by Supervisor Leno and approved by the Board of Supervisors. Commissioner Marshall’s re-draft separates and makes clear which provisions of Section 6.15 apply to situations where there is an absolute prohibition and which apply to situations where there is not. After discussion and some amendments to the proposal, the Board voted as follows:

MSC: To put the proposed amendments to Rules and Regulations Section 6.15 out for Public Hearing on December 21, 1999. (Marshall/Becker: 5-0)

The proposed amended Section 6.15 reads as follows:

Section 6.15A Subletting and Assignment - Where Rental Agreement Includes an Absolute Prohibition Against Subletting and Assignment

This Section 6.15A applies only when a lease or rental agreement includes an absolute prohibition against subletting and assignment.

(a) For agreements entered into on or after May 25, 1998, breach of an absolute prohibition against subletting or assignment may constitute a ground for termination of tenancy pursuant to, and subject to the requirements of, Section 37.9(a)(2) and subsection (b) below, only if such prohibition was adequately disclosed to the tenant at the commencement of the tenancy. For purposes of this subsection, adequate disclosure shall include satisfaction of one of the following requirements:

(1) the prohibition against sublet or assignment is set forth in enlarged or boldface type in the lease or rental agreement and is separately initialed by the tenant; or

(2) the landlord has provided the tenant with a written explanation of the meaning of the absolute prohibition, either as part of the written lease or rental agreement, or in a separate writing.

(b) If the lease or rental agreement specifies a number of tenants to reside in a unit, or where the open and established behavior of the landlord and tenants has established that the tenancy includes more than one tenant, then the replacement of one or more of the tenants by an equal number of occupants, subject to subsections (c) and (d) below, shall not constitute a breach of the lease or rental agreement for purposes of termination of tenancy under Section 37.9(a)(2) of the Ordinance.

(c) If the tenant makes a written request to the landlord for permission to sublease in accordance with Section 37.9(a)(2), and the landlord fails to respond in writing within fourteen (14) days of receipt of the tenant’s written request, the subtenancy is deemed approved pursuant to Ordinance Section 37.9(a)(2)

(d)(1) The Tenant’s inability to obtain the landlord’s consent to subletting or assignment shall not constitute a breach of the lease or rental agreement for purposes of eviction under Section 37.9(a)(2), where the subletting or assignment is deemed approved pursuant to subsection (c) above or where the landlord has unreasonably withheld consent to such change. Withholding of consent by the landlord shall be deemed to be unreasonable if the tenant has met the following requirements:

(i) The tenant has requested in writing the permission of the landlord to the sublease or assignment prior to the commencement of the proposed new subtenant’s occupancy of the unit;

(ii) The proposed new subtenant, if requested by the landlord, has completed the landlord’s standard form application, or, in the event the landlord fails to provide an application or has no standard form application, the proposed new tenant or new subtenant has, upon request, provided sufficient information to allow the landlord to conduct a typical background check, including credit information, income information, references, and background information;

(iii) The tenant has provided the landlord five (5) business days from receipt of the application to process the proposed new subtenant’s application;

(iv) The proposed new subtenant meets the regular reasonable application standards of the landlord;

(v) If asked, the proposed new subtenant has agreed in writing to be bound by the current rental agreement between the landlord and the tenant;

(vi) The tenant has not, without good cause, requested landlord consent to a new tenant or new subtenant more than one time per existing tenant residing in the unit during the previous 12 months;

(vii) The tenant is requesting replacement of a departing tenant or tenants with an equal number of new occupants.

(2) This subsection (d) shall not apply to assignment of the entire tenancy or subletting of the entire unit.

(e) Where a lease or rental agreement specifies the number of tenants to reside in a unit, or where the open and established behavior of the landlord and tenants has established that the tenancy includes more than one tenant, failure of the landlord to consent to the replacement of one or more of the tenants by an equal number of occupants, subject to subsection (d)(1) above, may constitute a decrease in housing services pursuant to Section 10.10 of these Regulations.

(f) Nothing in this Section shall prevent the landlord from providing a new occupant with written notice as provided under Section 6.14 that the occupant is not an original tenant as defined in Section 6.14(a) and that when the last of the tenant(s) who meet the latter definition vacates the premises, a new tenancy is created for purposes of determining the rent under the Rent Ordinance.

Section 6.15B Subletting and Assignment - Where Rental Agreement Contains a Clause Requiring Landlord Consent to Subletting and Assignment

This Section 6.15B applies only when a lease or rental agreement includes a clause requiring landlord consent to assignment or subletting.

(a) If the lease or rental agreement specifies a number of tenants to reside in a unit, or where the open and established behavior of the landlord and tenants has established that the tenancy includes more than one tenant, then the replacement of one or more of the tenants by an equal number of tenants, subject to subsection (b) below, shall not constitute a breach of the lease or rental agreement for purposes of termination of tenancy under Section 37.9(a)(2) of the Ordinance.

(b) The tenant’s inability to obtain the landlord’s consent to subletting or assignment shall not constitute a breach of the lease or rental agreement for purposes of eviction under Section 37.9(a)(2), where the landlord has unreasonably withheld consent to such change. Withholding of consent by the landlord shall be deemed to be unreasonable if the tenant has met the following requirements:

(i) The tenant has requested in writing the permission of the landlord to the sublease or assignment prior to the commencement of the proposed new subtenant’s occupancy of the unit;

(ii) The proposed new subtenant, if requested by the landlord, has completed the landlord’s standard form application, or, in the event the landlord fails to provide an application or has no standard form application, the proposed new subtenant has, upon request, provided sufficient information to allow the landlord to conduct a typical background check, including credit information, income information, references, and background information;

(iii) The tenant has provided the landlord five (5) business days to process the proposed new subtenant’s application;

(iv) The proposed new subtenant meets the regular reasonable application standards of the landlord;

(v) The proposed new subtenant has agreed to sign and be bound by the current rental agreement between the landlord and the tenant;

(vi) The tenant has not, without good cause, requested landlord consent to a new subtenant more than one time per existing tenant residing in the unit during the previous 12 months;

(vii) The tenant is requesting replacement of a departing tenant or tenants with an equal number of new tenants.

(2) This subsection (b) shall not apply to assignment of the entire tenancy or subletting of the entire unit.

(e) Where a lease or rental agreement specifies the number of tenants to reside in a unit, or where the open and established behavior of the landlord and tenants has established that the tenancy includes more than one tenant, failure of the landlord to consent to the replacement of one or more of the tenants by an equal number of tenants, subject to subsection (b) above, may constitute a decrease in housing services pursuant to Section 10.10 of these Regulations.

(f) Nothing in this Section shall prevent the landlord from providing a replacement new subtenant with written notice as provided under Section 6.14 that the tenant is not an original tenant as defined in Section 6.14(a) and that when the last of the tenant(s) who meet the latter definition vacates the premises, a new tenancy is created for purposes of determining the rent under the Rent Ordinance.

Section 6.15C Master Tenants

(1) For any tenancy commencing on or after May 25, 1998, a landlord who is not an owner of record of the property and who resides in the same rental unit with his or her tenant (a "Master Tenant") may evict said tenant without just cause as required under Section 37.9(a) only if, prior to commencement of the tenancy, the Master Tenant informs the tenant in writing that the tenancy is not subject to the just cause provisions of Section 37.9. A landlord who is an owner of record of the property and who resides in the same rental unit with his or her tenant is not subject to this additional disclosure requirement.

(2) In addition, for any tenancy commencing on or after May 25, 1998, a Master Tenant shall disclose in writing to a tenant prior to commencement of the tenancy the amount of rent the Master Tenant is obligated to pay to the owner of the property.

C. Rules and Regulations Section 6.14

The Landlord and Tenant Commissioners had distributed draft proposed revisions of Rules and Regulations Section 6.14 that each side believed would comport that Section with the requirements of Costa-Hawkins. On behalf of the Tenant Commissioners, Commissioner Becker remarked on what he believed to be problems in the landlords’ draft; Commissioner Murphy did the same regarding the tenants’ draft on behalf of the Landlord Commissioners. Neutral Commissioners Wasserman and Justman will now attempt to reconcile the proposals in accordance with applicable law.

VI. Communications

The Commissioners received a copy of the California Supreme Court’s denial of a request for depublication of the appellate opinion in the case of Golden Gateway Center v. S.F. Rent Board.

VII. Calendar Items

November 23, 1999

10 appeal considerations

Old Business: Rules and Regulations Section 6.14

November 30, 1999 - NO MEETING

VIII. Adjournment

President Wasserman adjourned the meeting at 10:15 p.m.

Last updated: 10/9/2009 11:26:14 AM