October 15, 2002
MINUTES OF THE REGULAR MEETING OF
THE SAN FRANCISCO RESIDENTIAL RENT
STABILIZATION & ARBITRATION BOARD,
Tuesday, October 15, 2002 at 6:00 p.m. at
25 Van Ness Avenue, Suite 70, Lower Level
I. Call to Order
President Wasserman called the meeting to order at 6:05 p.m.
II. Roll Call
Commissioners Present: Becker; Gruber; Lightner; Marshall;
Murphy.
Commissioners not Present: Hobson; Mosser; Wasserman.
Staff Present: Grubb; Wolf.
Commissioner Justman appeared on the record at 6:21 p.m.; Commissioner
Aung arrived at the meeting at 6:48 p.m. Commissioner Becker went off the
record at 7:55 p.m.
III. Approval of the Minutes
IV. Consideration of Appeals
The landlord’s petition seeking a determination as to whether there are any
"Tenants in Occupancy" at the subject unit was denied, because the
Administrative Law Judge found that two of the current occupants reside at
the unit as their principal place of residence. On appeal, the landlord argues
that: the tenant took actions after the petition was filed to establish occupancy
in the unit but, at the time the petition was filed, she was not a "Tenant
in Occupancy"; the tenant does not qualify for protection under the Ordinance
because she has been residing out of state for three years; by having sublet
the unit, the tenant became a landlord, and had no right to occupy the unit;
the decision is beyond the authority of the Rent Board, because it expands
the definition of "Tenant in Occupancy"; and the tenant in this
case has unclean hands, which should have factored in to the decision.
After discussion, it was the consensus of the Board to continue this case
to the next meeting in order for staff to contact the tenant and find out
whether she has moved back in to the subject unit.
The tenants’ petitions alleging that they paid more than their proportional
share of the rent were granted, and the master tenant was found liable in
the amount of $1,133.67 to one of the subtenants and $1,446.90 to the other.
The master tenant appeals, claiming that: the Administrative Law Judge exhibited
bias against her; the decision was based on a square footage allocation of
the rent only, and consideration was not given to the additional housing services
that she provided, the procurement of which was costly; the subtenants were
not precluded from availing themselves of areas of the unit used exclusively
by her; a master tenant should be allowed a "surcharge" for their
time and delivery of additional housing services; the subtenants failed to
give proper 30-day notice prior to moving out; the petition was not timely
filed; and the regulation should not apply to subtenants who have vacated
the unit.
The tenants’ petition claiming several decreased housing services was denied,
except that the landlord was found liable in the amount of $265.50 due to
the condition of the exterior rear stairs to the unit. On appeal, the tenants
maintain: that evidence and testimony introduced by the tenants as to the
noisy garage door opener was not taken into account by the Administrative
Law Judge; that the fact that no Notice of Violation was issued is irrelevant;
and correspondence from other tenants regarding the petitioners should be
stricken from the record.
The tenant’s petition alleging decreased housing services due to the landlord’s
failure to allow a replacement roommate was denied because the Administrative
Law Judge found that the tenant had requested, without good cause, the landlord’s
consent to a new roommate more than once in a 12-month period. Upon appeal
by the tenant, the Board found that good cause existed under the facts of
this case, and a commensurate rent reduction was granted on remand. The landlord
appeals the remand decision, asserting that the original disallowance of the
tenant’s petition and subsequent reversal upon appeal created a 4-month delay
for which he should not be held liable.
E. 2045 Hayes St. #2 AL020222
Three subtenants filed a petition to determine whether their rents on August
22, 2001 were more than the subtenants’ proportional share of the total rent
paid to the landlord by the Master Tenant. The Administrative Law Judge found
that two of the three subtenants were paying more than their proportionate
share of the rent, and the Master Tenant was found liable to the subtenants
for rent overpayments. The Master Tenant, who failed to appear at the hearing,
appeals, alleging that: she was delayed by a traffic accident, which caused
her to miss the hearing; a common living room was only used by two of the
subtenants; two of the subtenants knew they would be sharing a room when they
moved into the unit; the Master Tenant’s room was the least desirable of all
the bedrooms; and a contract between she and the subtenants should not be
considered legally valid.
MSC: To accept the appeal and remand the case for a new hearing. Should
the Master Tenant fail to appear again, absent extraordinary circumstances,
no further hearings will be granted. (Becker/Marshall: 4-1; Gruber dissenting)
F. 132-138 Albion St. AL020224
The landlords’ petition for certification of capital improvement costs was
dismissed due to their failure to appear at the properly noticed hearing.
On appeal, the landlords claim not to have received notice of the hearing,
and attach the requisite Declaration of Non-Receipt of Notice of Hearing.
G. 2245 Beach St. #2 AL020225
The landlord filed a petition seeking a determination as to whether the tenant
is a "Tenant in Occupancy" pursuant to Rules Section 1.21 and whether
a rent increase is justified pursuant to Rules and Regulations Sections 1.21,
Rules Section 6.14, and/or Costa-Hawkins. The Administrative Law Judge found
that, although the tenant resides at a lodge in the Sierras he leases during
the summer months, the subject unit is still the tenant’s principal place
of residence and therefore no rent increase was warranted. The landlord appeals,
claiming that: the tenant has failed to meet his burden of proving that the
subject unit is his principal place of residence; the tenant should be required
to furnish tax documents showing that he does not claim a homeowner’s exemption
on property he owns in Santa Cruz; the tenant returns to the lodge in the
Sierras as frequently as he returns to the subject unit; and it is unfair
for the tenant to be able to evict his sub-tenants upon his return, since
he would not be able to do so were he an owner of the property.
The landlord filed a petition seeking a determination of the initial rent
for a non-comparable replacement unit. The Administrative Law Judge set the
initial rent at $970.00. On appeal, the landlord maintains that the decision
is in error in ruling that there are no banked rent increases available to
the landlord.
The tenant’s petition alleging an unlawful rent increase was granted and
the landlord was found liable to the tenant in the amount of $1,970.50. The
Administrative Law Judge found that the tenant was a subtenant of a master
tenant during the period March 1, 1999 through September 30, 2001 and that
any claim regarding overpayments during this period would have to be made
against the estate of the master tenant. On appeal, the tenant argues that:
the decision allows the landlord’s wrongful retention of an unlawful rent
increase from the individual who actually paid it; the master tenant died
intestate and without property, so there is no probate or estate against which
any claim could have been lodged; the master tenant did not raise the tenant’s
rent, but was merely a conduit between the tenant and the landlord; the tenant
became a co-tenant upon the landlord having demanded the rent increase of
him; and subtenants have the same rights as tenants in seeking recovery of
rent overpayments under the Ordinance.
The landlord’s petition seeking a determination as to whether the tenant
is a "Tenant in Occupancy" pursuant to Rules Section 1.21 was denied.
Although the tenant has a homeowner’s exemption on a property in Sacramento,
he is separated from his wife and does not commute from Sacramento to his
job in Silicone Valley. Rather, he stays as a "guest" several nights
a week at a friend’s house in Los Altos. The Administrative Law Judge therefore
found that the San Francisco unit is the tenant’s principal place of residence
and usual place of return. The landlord appeals, maintaining that: all the
indices of residency contained in Section 1.21 point to Sacramento as the
tenant’s principal place of residence; the landlord resides in the building
and knows from personal knowledge that the tenant is only on the premises
1-2 nights per week; and the San Francisco unit is the tenant’s pied a terre
which he uses for business and personal purposes.
MSC: To accept the appeal and remand the case to the Administrative
Law Judge to vacate the decision and find, under the facts of this case,
that the tenant is not a "Tenant in Occupancy" pursuant to
Rules and Regulations Section 1.21. (Gruber/Lightner: 5-0)
V. Communications
The Commissioners received correspondence concerning cases on the calendar.
VI. Director’s Report
Executive Director Joe Grubb informed the Board that new counselor Jason
Stein and returning Administrative Law Judge Vanessa Davenport have come on
board. Kathy Chau, a new 1424 Clerk Typist will begin on November 4th.
The department will be restricted to hiring just two temporary Administrative
Law Judges due to budgetary reasons.
VII. Old Business
A. The Blaine Family Trust v. Rent Board (Perlstadt)
(Superior Court Case No. 500854)
Rules and Regulations Section 1.21
The Board had voted to pursue an appeal of the court’s decision granting
the landlord’s Writ at their meeting on September 3rd. At that
time, Deputy City Attorney Randy Riddle informed the Commissioners that it
might be beneficial to the appeal if the Board clarified Rules Section 1.21
to make it clear that tenants can occupy more than one unit in a building
as their principal place of residence. President Wasserman asked that staff
draft such language, but that it also be made clear that the units had to
have been rented to the tenant(s) in good faith and with the landlord’s knowledge.
Senior Administrative Law Judge Tim Lee drafted such language. Additionally,
Deputy City Attorney Scott Dickey proposed additional language to make it
clear that tenants must really live in the units, and that a tenant could
meet the indicia of residency outlined in the regulation, but still not reside
in the unit as their principal place of residence. The Deputy Director distributed
both versions of the proposed language and discussion of this issue was continued
to the October 29th meeting.
Discussion of this issue was continued to the meeting on October 29th.
VIII. New Business
In March of 2002, the Board amended Rules and Regulations Section 6.10(e)
to provide that only the owner who incurred increased debt service and/or
property tax costs could file a petition to pass through such costs to tenants.
The Deputy Director informed the Board that there is a pending situation where
other costs incurred by a prior owner, specifically water and repairs, are
being petitioned for. Ms. Wolf asked the Board if they wished to further amend
the regulation to make it clear that all expenses must have been incurred
by the owner who is filing the petition. The Commissioners requested that
the City Attorney be consulted regarding the effect of amending a regulation
on pending cases, filed before the effective date of the amendment.
IX. Calendar Items
October 22, 2002 - NO MEETING
October 29, 2002
12 appeal considerations (1 cont. from 10/15/02)
Old Business:
A. Rules and Regulations Section 1.21 (Perlstadt)
B. Proposed Amendments to Rules and Regulations Section 1.18
C. Rules and Regulations Section 6.10(a)
November 5, 2002 - NO MEETING (Election Day)
Additional meetings in November will be on the 12th and 19th;
both meetings will begin at 6:30 p.m.