Living in Non-Sleeping Rooms

Posted by wasserman

I found out that a master tenant has rented a “windowed closet” as a bedroom to a subtenant. The subtenant has been living there for three months. Is this legal?

The reality is that, absent clear lease language defining what constitutes a permissible bedroom, the landlord may not be able to prohibit this type of living arrangement.  This question highlights what has become increasingly problematic for landlords:  Tenants turning large closets, living rooms, dining rooms, and pantries into bedrooms.

According to the California Building Code, a bedroom is defined as a sleeping unit. Specifically, a bedroom is:

“A room or space in which people sleep, which can also include permanent provisions for living, eating, and either sanitation or kitchen facilities but not both. Such rooms and spaces that are also part of a dwelling unit are not sleeping units.”

The Planning Department has further defined a bedroom as “any room which meets all of the following criteria and which is subsequently determined by Department of Building Inspection to meet applicable Building and Housing Code Standards as follows:

(1) Contains at least 70 square feet, exclusive of closets, bathrooms, or similar spaces;

(2) Has at least one window opening to an area which leads either to a street or rear yard space; and,

(3) Is clearly labeled as a ’bedroom’ on submitted construction plans.”

So traditionally a bedroom was at least 70 square feet, had a window, and did not contain both a bathroom and kitchen.  Yet in recent years the City has relaxed these requirements; indeed, in a recent high-profile case the City allowed windowless rooms to constitute bedrooms.  Moreover, Building Inspectors are hesitant to declare that a room may not be used for sleeping if such a stance will result in the displacement of tenants in the nation’s most expensive housing market.

Consequently, tenants all over town are converting non-bedrooms into sleeping units, whether they are traditional dining rooms in the Richmond District, living rooms on Nob Hill, or large closets in the Mission District.

To further complicate this matter, the Kim Law in November of 2015, which generally permits tenants to house two persons per bedroom regardless of what a rental agreement proscribes, now incentivizes tenants to transform all non-kitchen and bathrooms into sleeping units so as to bring in more rent-paying roommates.

After passage of the Kim Law, the SFAA Lease Drafting Committee changed the SFAA Lease to include the following provision:

The Premises is a   [studio, 1 bedroom, etc.]                     unit.  No conversion of, nor any attempt to convert any other room to a bedroom is permitted, nor will any such conversion change the definition of the unit for purposes of establishing the type of unit under the provisions of the Rent Ordinance, despite or regardless of the Owner’s inaction or consent to such conversion.

This lease language permits the landlord to designate the number of bedrooms in the apartment.  Not only will this designation serve to prohibit unit population expansion, but, most importantly, tenants will not be allowed to sleep in areas unsafe for sleeping.  Indeed, persons living in large closets may not have the benefit of smoke detectors, emergency egress, and sufficient ventilation.  Unfortunately, without a concise lease covenant defining the placing for sleeping, a master tenant may have a fair amount of discretion to “convert” large closets and other areas outside of the bathrooms and kitchen into bedrooms.

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