Posted by wasserman
I have been sharing my duplex with the same tenant for over 20 years. At this point, I would like to sever the relationship and have her move out. Am I legally entitled to do so?
The answer is not an easy “yes” or “no,” but instead is dependent upon whether or not the tenant in question is a subtenant or a roommate. The distinction is critical, because a subtenant cannot be asked to leave without a just cause reason to evict under the rent law whereas a roommate may be displaced by the owner of the property if the owner and tenant reside together as true roommates.
The Rent Ordinance’s roommate just cause exception is codified as follows: “A landlord who resides in the same rental unit with his or her tenant may evict said tenant without just cause as required under [the Rent Ordinance].”
In addition, Section 6.15C of the San Francisco Rent Board’s Rules and Regulations reads as follows: “For any tenancy commencing on or after May 25, 1998, a landlord who is not an owner of record of the property and who resides in the same rental unit with his or her tenant (a ‘Master Tenant’) may evict said tenant without just cause as required under Section 37.9(a) only if, prior to commencement of the tenancy, the Master Tenant informs the tenant in writing that the tenancy is not subject to the just cause provisions of Section 37.9. A landlord who is an owner of record of the property and who resides in the same rental unit with his or her tenant is not subject to this additional disclosure requirement.”
So if you are an owner of record and live with your tenant as a roommate, you should be able to terminate the tenancy at any time without having to rely upon one or more just cause reasons, and you do not need a lease agreement to specifically disclose this exception unlike a non-owner master tenant who decides to sublease.
But do not let the simplicity of this explanation fool you. The term “roommate” has never been formally defined by either the courts or the Rent Board. Moreover, there is recent case law suggesting that owners who rent rooms in single family homes may in fact have created separate tenancies and sub tenancies that are not roommate situations. Indeed, this author has been involved in contested matters where the owner’s roommate argument is defeated by the tenant’s presentation of facts evidencing that no roommate situation really exists. Most commonly, such positions are reinforced by the following scenarios: (i) the tenant has a separate entrance/exit; (ii) there are two separate kitchens and/or bathrooms; (iii) the owner rents multiple rooms out to different tenants; (iv) everyone has their own bedroom lock; and (v) the owner and tenant executed a lease agreement that specifically identifies the tenant’s exclusive space within the premises. Thus, while there may be no clear cut rules on this topic, a true roommate situation, as envisioned by the rent regulations, suggests that an owner may co-habitat with someone by sharing the entirety of the housing with them akin to a romantic or friendship situation, but perhaps the line is crossed when one or more of the factors listed above are met. As such, be careful when taking on roommates, and consult an attorney before initiating actions to remove a cohabitant.