Topic No. 151: Subletting and Replacement of Roommates

San Francisco’s Rent Ordinance generally allows tenants to replace departing roommates and/or to increase the number of occupants living in the unit, even when prohibited by a written lease. However, nothing in the Rent Ordinance allows a tenant to sublet or assign the entire unit to a new tenant in violation of a lease, or to sublet the unit for tourist or transient use as defined in the Short Term Rental Ordinance for a period of less than 30 days (See Admin. Code Section 41A.5).

Tenants with written lease agreements must follow the procedures described herein to obtain the landlord’s approval before moving a new occupant into the unit. On the other hand, if there is no written lease agreement for the tenancy, or if the agreement is silent on the issue of subletting and does not include a limit on the number of occupants, a tenant is not required to obtain the landlord’s approval before moving a new occupant into the unit and the following procedures do not apply.

What steps must a tenant follow to obtain the landlord’s consent? 

The steps for obtaining a landlord’s consent to a new occupant include strict time limits that must be followed by tenants and landlords. First, the tenant must make a written request to the landlord for permission to move the new occupant into the unit. The written request may be delivered to the landlord in person, through email, or by regular mail.

The landlord has 14 days from receipt of the tenant’s written request to approve or deny the request for the proposed new occupant. The landlord’s denial of a tenant’s request must be in writing with a description of the reasons for the denial, including specific facts supporting the reasons for the denial. If the landlord does not respond to the tenant’s request within 14 days or unreasonably denies the tenant's request, the request is deemed approved by law and the tenant cannot be evicted for moving the new occupant into the unit without the landlord’s prior consent.

How do I count the fourteen days?

Example: The tenant makes a written request on the 1st day of the month to replace a departing roommate or to add an additional family member or other additional occupant to the unit.

  • If the tenant’s written request is delivered to the landlord in person, the request is considered received by the landlord on the date of delivery (the 1st) and the landlord has until the 15th to respond.
  •  If the request is delivered by email, the request is considered received after two days (the 3rd) and the landlord has until the 17th to respond.
  •  If the request is delivered by mail, the request is considered received five days after the postmark date (the 6th) and the landlord has until the 20th to respond. 

Can the landlord request any information about the proposed new occupant?

Within five days of receipt of the tenant’s written request, the landlord may require the tenant to submit a completed standard form application for the proposed new occupant or to provide sufficient information about the new occupant to allow the landlord to conduct a typical background check, including full name, date of birth and references if requested. While the landlord may require that the new occupant meet their regular, reasonable application standards, and agree in writing to be bound by the current rental agreement between the landlord and tenant, creditworthiness may not be the basis for denial of the tenant’s request for an additional occupant if the additional occupant will not be legally obligated to pay some or all of the rent to the landlord. Thus, where the tenant requests the landlord’s consent for a new occupant who will not pay rent directly to the landlord, such as a subtenant, the landlord may not require credit or income information as part of the application or background check. 

If the landlord makes a timely request for information from the proposed new occupant, the tenant then has five calendar days after receipt of the landlord’s request to provide the landlord with the proposed new occupant’s application or typical background check information. The five-day period begins to run on the day after actual receipt of the landlord’s request by the tenant. If the tenant does not respond within the five-day period, the landlord can deny the tenant’s request on that basis. The tenant can then make a new written request to the landlord for a new occupant and the 14-day timeline starts over.

When can a landlord deny a request for a new occupant?

Pursuant to the Rent Board’s Rules and Regulations, Sections 6.15A, 6.15B, 6.15D and 6.15E, a landlord must have a reasonable basis to deny a tenant’s request for a new occupant in the unit. Unless the new occupant is the minor child of an existing tenant, denial by the landlord of the tenant’s written request for a new occupant may be considered reasonable in some circumstances, including but not limited to the following:

  1. where the proposed new occupant will be legally obligated to pay some or all of the rent to the landlord and the landlord can establish that the new occupant lacks creditworthiness.
  1. where the landlord made a timely request for the proposed new occupant to complete the landlord’s standard form application or to provide sufficient information to allow the landlord to conduct a typical background check and the new occupant does not comply within five calendar days of actual receipt by the tenant of the landlord’s request.
  1. where the landlord can establish that the proposed new occupant has intentionally misrepresented significant facts on the landlord’s standard form application or provided significant misinformation to the landlord that interferes with the landlord’s ability to conduct a typical background check.
  1. where the landlord can establish that the proposed new occupant presents a direct threat to the health, safety or security of other residents of the property or to the physical structure of the property.

In addition, the landlord may also deny the tenant’s request for a new occupant if the addition of the new occupant will exceed the number of occupants permitted by the lease or the number of occupants previously allowed by the landlord in the unit, and one of the following are true:

  1. the additional occupant is not the family member of an existing tenant and the landlord and tenant reside in the same rental unit, or
  2. the additional occupant is not the family member of an existing tenant and the additional occupant would require the landlord to increase the electrical or hot water capacity in the building, or adapt other building systems or existing amenities, and payment for such enhancements presents a financial hardship to the landlord, as determined by a Rent Board Administrative Law Judge, or
  3. the total number of occupants in the unit (including family members) will exceed either:

(i)  two persons in a studio unit, three persons in a one-bedroom unit, four persons in a two-bedroom unit, six persons in a three-bedroom unit, or eight persons in a four-bedroom unit; or

(ii) the maximum number permitted in the unit under San Francisco Housing Code Section 503.

A “family member” for this purpose is defined as the tenant’s child, parent, grandchild, grandparent, brother or sister, or the spouse or domestic partner of such relatives, or the spouse or domestic partner of the tenant.

What if the landlord unreasonably denies the tenant’s request for a new occupant?

If the landlord denies the tenant’s request for a new occupant without a reasonable basis, the tenant may file a decrease in services petition with the Rent Board to request a reduction in rent. Additionally, the tenant may not be evicted for breach of the written lease agreement if the new occupant moves in and the landlord has unreasonably withheld consent to the new occupant.

What if the tenant moves a new occupant into the unit without the landlord’s consent?

If the tenant has a written lease that limits or prohibits subletting and the tenant moves a new occupant into the unit without the landlord’s consent, the landlord may serve the tenant with written notice that the lease has been violated and must allow the tenant at least ten (10) days to cure the lease violation before proceeding with an eviction. The tenant may cure the violation by making a written request to the landlord for the additional occupant or by removing the unapproved occupant from the unit. The tenant’s written request would start the 14-day timeline described above.

Does the landlord have to add the new occupant to the lease?

Even if the landlord has given approval for the new occupant to move into the unit, the landlord is not required to accept rent directly from the new occupant or to add the new occupant to the lease agreement. Rather, the landlord can continue to accept the full rent payment from one or more of the existing tenant(s), who act as the “master tenant(s)” in relation to the new “subtenant” occupant. Generally, a subtenant is an occupant who has no agreement with the owner and pays rent to a master tenant who is legally considered the “landlord.” For more information regarding master tenants and subtenants, see Topic Nos. 154 and 157.

Can the landlord increase the rent because of the new occupant?

The landlord may not increase the rent for the unit based on the replacement of a departing tenant or the addition of new occupants, even if agreed to by the tenant (see Topic No. 152). However, if all of the original tenants have permanently vacated the unit and the only remaining occupants are subtenants who moved in on or after January 1, 1996, the landlord may be entitled to increase the rent to market rate (see Topic No. 153).

For more information regarding roommates and subletting, please refer to the following Rent Board Rules and Regulations:

  • Section 6.15A - where the tenant has requested consent to the replacement of an existing roommate on a one-for-one basis and the written lease contains an absolute prohibition against subletting;
  • Section 6.15B - where the tenant has requested consent to the replacement of an existing roommate on a one-for-one basis and the written lease requires the landlord’s consent to subletting but does not contain an absolute prohibition;
  • Section 6.15C - which concerns the rights and responsibilities of master tenants and subtenants;
  • Section 6.15D - where the tenant has requested consent for an additional occupant who is a family member; and
  • Section 6.15E - where the tenant has requested consent for an additional occupant who is not a family member.

 

September 2018