Roommates and subletting

1. Subletting and Replacement of Roommates

2. Charging For Additional Occupants Prohibited

3. Rent Increases Under Section 6.14 And Costa-Hawkins

4. Limits on Rent Charged By Master Tenants

5. Evictions of Roommates and Subtenants

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, tenants with written lease agreements must follow certain procedures to obtain the landlord’s approval before moving a new occupant into the unit. Read this article to learn more about subletting and replacing roommates. 

San Francisco's rental law does not allow a landlord to charge additional rent simply because a new (or additional) roommate has moved into a unit with the existing tenant. This constitutes an unlawful rent increase, even if the lease or rental agreement provides for the additional charge. Any agreement to pay such additional rent is void and unenforceable by the landlord. Tenants who pay additional rent for additional occupants may file a Tenant Petition to obtain a refund of any unlawful rent overcharges.

The landlord may be entitled to increase the rent to market rate in certain roommate situations where all of the original tenants have moved out. Rules and Regulations Section 6.14 and/or Civil Code Section 1954.53(d) of the Costa-Hawkins Rental Housing Act may apply in this situation. Since these provisions can be complicated, landlords and tenants should obtain legal advice concerning their application to specific fact situations. A general overview of these two provisions can be found here. 

In general, a sublet exists where the original (or "master") tenant takes in a roommate whose name is not on the lease and who pays rent to the master tenant, or where the master tenant rents the unit to another person during the master tenant's absence.A master tenant cannot charge any subtenant more than a proportional share of the total rent the master tenant pays to the owner. The subtenant’s allowable proportional share of the total rent may be based on equal division by the number of occupants or bedrooms, or the square footage of exclusively occupied space. In addition, the reasonable value of housing services provided by the master tenant such as furnishings, utilities, parking, storage, cable or internet may be taken into account when setting the subtenant’s rent. (Rent Board Rules and Regulations Section 6.15C(3))

If the total rent paid by the master tenant to the owner increases due to a lawful rent increase or passthrough, the subtenant's share of the rent may be increased even if it has been less than 12 months since the last rent increase, as long as the subtenant’s share remains proportional.

A master tenant subletting the entire premises may not charge a subtenant more than the rent lawfully owed to the landlord. Where a master tenant incurs out-of-pocket expenses such as utilities that are not paid by the owner, the subtenant’s payment of those expenses is permissible, even though it may result in a total payment to the master tenant that exceeds the rent paid to the owner.

If a subtenant believes that he or she is paying a master tenant more than a proportional share of the total rent or that the initial rent paid to a master tenant for a sublet of the entire unit is more than the master tenant is paying to the owner, the subtenant may file a Rent Board petition against the master tenant on that basis. If the subtenant prevails, the Administrative Law Judge will adjust the rent to the proper amount and order the master tenant to refund any past rent overpayments.

A master tenant who resides in the same rental unit with his or her subtenant may evict the subtenant without one of the “just cause” reasons enumerated in Rent Ordinance Section 37.9. However, for any subtenancy commencing on or after May 25, 1998, the master tenant may not evict a subtenant without just cause unless the master tenant disclosed in writing to the subtenant that the tenancy is not subject to the just cause eviction provisions of the Ordinance prior to the commencement of that tenancy.

Only landlords are allowed to evict their tenants. A master tenant is considered a landlord in relation to his or her subtenant, meaning that a master tenant is able to evict a subtenant. A master tenant may not remove or lock out a subtenant or take the subtenant’s belongings in order to force a subtenant to move. Master tenants must comply with state law unlawful detainer procedures in order to evict a subtenant.

Subtenants do not have the right to evict their master tenant or other subtenants or roommates. Similarly, roommates who are co-tenants cannot evict their fellow co-tenants.

We highly recommend that master tenants seek the advice of an attorney experienced in this area of the law before asking a subtenant to move or attempting an eviction.

Tags: Topic 152; Topic 154; Topic 157