Topic No. 328: 1.21 Tenant In Occupancy Petitions
A landlord is permitted to impose an unlimited rent increase pursuant to Rules and Regulations Section 1.21 when there is no tenant in occupancy of the rental unit. The landlord must first file a petition at the Rent Board seeking a determination that there is no tenant in occupancy prior to issuing a notice of rent increase on such grounds. The notice can be served only after the petition is filed, or the landlord can wait until after the Rent Board issues a decision. If the notice is served before the petition is filed, the notice is void and cannot be the basis for a lawful rent increase. If the notice is properly served after the petition is filed, the rent increase will be inoperative until the Rent Board issues a decision determining that there is no tenant in occupancy. However, if the petition is granted, any sums owing will be retroactive to the effective date of a valid notice of increase.
A tenant in occupancy is a person who actually resides in the rental unit as his or her "principal place of residence" and who is entitled by written or oral agreement, subtenancy approved by the landlord, or by sufferance, to occupy the unit to the exclusion of others. Occupancy does not require that the individual be physically present in the unit at all times or continuously, but the unit must be the tenant's usual place of return. When considering whether a tenant occupies a rental unit as his or her "principal place of residence," the Rent Board considers the totality of the circumstances, including, but not limited to the following elements:
(1) whether the subject premises are listed as the individual's place of residence on any motor vehicle registration, driver's license, voter registration, or with any other public agency, including Federal, State and local taxing authorities;
(2) whether utilities are billed to and paid by the individual at the subject premises;
(3) whether all of the individual's personal possessions have been moved into the subject premises;
(4) whether a homeowner's tax exemption for the individual has been filed for a different property;
(5) whether the subject premises are the place the individual normally returns to as his/her home, exclusive of military service, hospitalization, vacation, family emergency, travel necessitated by employment or education, or other reasonable temporary periods of absence; and/or
(6) whether there is credible testimony from individuals with personal knowledge, or other credible evidence, that the tenant actually occupies the rental unit as his or her principal place of residence.
A compilation of these elements lends greater credibility to the finding of "principal place of residence" whereas the presence of only one element may not support such a finding. A tenant can occupy two or more reasonably proximate rental units in the same building as his or her principal place of residence.
Section 1.21 is not applicable if any co-tenant or approved subtenant meets the definition of "tenant" in the Rent Ordinance and resides in the unit as his/her principal place of residence. In such situations an unlimited rent increase will not be approved even if the unit is not the original tenant's principal place of residence. In such instances, the landlord may be able to increase the rent under the Costa-Hawkins Rental Housing Act and/or Rules and Regulations Section 6.14.
A Section 1.21 Petition must be filed on a form supplied by the Rent Board, and must be accompanied by a statement that there is no other tenant in occupancy of the unit and an explanation of why the landlord believes that the subject unit is not the tenant's principal place of residence. To receive a copy of the Section 1.21 Petition form, you can fax it to yourself through our Fax Back system by calling (415)252-4660 or visit our website at www.sfrb.org. The form is also available at our office.