Section 4.13 Charges Related to Excess Water Use

(Adopted June 18, 1991)

(a) A landlord may impose increases not to exceed fifty percent of the excess use charges (penalties) levied by the San Francisco Water Department on a building for use of water in excess of Water Department allocations upon compliance with the provisions of Ordinance Section 37.3(a)(5) as follows: 

(1) The landlord shall provide the tenant(s) with written certification that the following have been installed in all units:

(i) permanently-installed retrofit devices designed to reduce the amount of water used per flush or low-flow toilets (1.6 gallons per flush);

(ii) low-flow showerheads which allow a flow of no more than 2.5 gallons per minute; and

(iii) faucet aerators (where installation on current faucets is physically feasible); and

(2) The landlord shall provide the tenant(s) with written certification that no known plumbing leaks currently exist in the building and that any leaks reported by tenants in the future will be promptly repaired; and

(3) The landlord shall provide the tenant(s) with a copy of the water bill for the period in which the penalty was charged. Only penalties billed for a service period which begins after April 20, 1991 may be passed through to tenants.

(b) The landlord shall calculate the amount of such passthrough as follows:

(1) Divide the excess water use penalty charge by 2 in order to obtain the total amount permitted to be passed through to qualified tenants in the building.

(2) Divide the penalty amount determined in number (1) above by the total number of rooms in the building to obtain the allowable passthrough per room. For the purposes of this section the number of rooms in a building shall be calculated by presuming that single rooms without kitchens are one room units, studios are two room units, one bedroom units without a separate dining room are three room units, and so on. Living rooms, dining rooms and other rooms of at least 70 square feet may be counted. Kitchens count as a room in all cases.

(3) Multiply the figure calculated in number (2) above by the number of rooms in each unit to obtain the allowable passthrough per unit.

(c) Only those tenants in residency during the billing period in which the penalty was incurred may be assessed the passthrough.

(d) The amount due from the tenant for any excess water use passthrough shall be due on the same date as a rent payment normally would be due.

(e) These are one-time, non-recurring charges unless a new excess use charge is applied on the next water bill, which would require new calculations and a new passthrough amount.

(f) No amount passed through to the tenant as a water use penalty charge shall be included in the tenant's base rent for purposes of calculation of the amount of rent increases allowable under the Ordinance and these Rules and Regulations.

(g) The tenant's failure to pay the demanded amount is not a just cause for eviction, as the passthrough is not defined as a rent increase under Section 37.2(o) of the Rent Ordinance. The owner must seek relief for non-payment in a court of competent jurisdiction or through an arbitration/mediation service.

(h) Nothing in this section or in these Rules and Regulations shall be interpreted as requiring any landlord to pass through any increase related to excess water use charges. However, the provisions of this Section shall be deemed a part of every rental agreement or lease, written or oral, for the possession of a rental unit subject to the Ordinance unless the landlord and tenant agree that the landlord will not pass through any excess water use penalty charges, in which case such agreement will be binding on the landlord and on any successor owner of the building, unless such agreement is changed in accordance with applicable law.

(i) Where an excess water use penalty charge has been lawfully demanded of a tenant, a change in the ownership of the building in which the tenant's unit is located will not affect the tenant's liability to pay the amount passed through.

(j) Up to 60 days following receipt by the tenant of a notice of an excess use charge passthrough, a tenant may object to the passthrough on the following grounds:

(1) The landlord has not provided written certification that the required water conservation measures have been installed;

(2) The landlord has not provided written certification that no known plumbing leaks exist;

(3) The landlord has not provided a copy of the bill for the period of the penalty charge;

(4) The penalty was incurred during a service period that began prior to April 20, 1991;

(5) The tenancy began after the period of the billing charges accrued;

(6) The landlord has failed to appeal an allotment based on an occupancy level that has changed after March 1, 1991, after having been requested to do so;

(7) The penalty reflects a 25% or more increase in consumption over the prior billing period, unrelated to increased occupancy or other known use and the property has not been inspected by a licensed plumber or the Water Department; and/or

(8) The passthrough is calculated using an incorrect room count.

(k) In order to object to the imposition of a water penalty charge passthrough, the tenant shall follow the below procedure:

(1) A complaint shall be filed on a form supplied by the Board

(2) The Board shall request that the landlord provide certification of compliance with the requirements of Ordinance Section 37.3(a)(5). If the landlord is alleged not to have implemented required water conservation measures, the landlord shall be required to provide certification from a licensed plumber or the San Francisco Water Department.

(3) Based on documentation provided by the landlord, the Rent Board shall approve or deny the passthrough and notify both parties of the determination.

(4) The Board's determination is not subject to appeal to the Rent Board Commissioners.

(5) The filing of a complaint by a tenant does not relieve the tenant of his or her obligation to pay the passthrough pending a final determination.