Unauthorized Subletting

Q: I know one of my tenants is subletting illegally and without my permission. We have evidence in the form of UPS notices and US mail. What legal recourse is available to me?

A: Subletting occurs when the named tenant brings in a new roommate. If there is a clear lease provision restricting or prohibiting subletting, and the tenant violates this covenant by moving in a new occupant without permission or consent, the landlord may have a just cause reason to terminate the tenancy.

However, to be enforceable, an absolute prohibition against subletting (no subletting under any circumstances) for leases entered into after May 25, 1998 must be explained clearly in the lease and separately initialed by the tenant. The subletting prohibition clause should also be set forth in enlarged or boldface type. The SFAA lease complies with these requisites.

The local rent law also states that the failure to allow for a replacement roommate will give the tenant grounds to receive a decrease in rent from the Rent Board for diminished housing services. Specifically, if you rent to tenants A and B, and B moves out, your failure to allow A to bring in a replacement roommate will potentially subject you to a substantial reduction of rent.

The rent law further permits subletting to direct family members. A tenant may request the addition of a tenant’s child, parent, grandchild, grandparent, brother/sister, or the spouse/domestic partner of such relatives or of the tenant. With the additional occupant, the total number of occupants may not, without the landlord’s consent, exceed the lesser of two persons per studio, three per one-bedroom, four per two-bedroom, six per three-bedroom or eight per four-bedroom, or the number of occupants permitted under state and/or local housing codes.

In light of the Costa Hawkins Rental Housing Act, which allows owners to raise rent when the last original tenant no longer permanently resides in the unit, the landlord should not place the new subtenants on the lease, accept rent from them, or otherwise communicate with them. Rather, all forms of dialogue should be channeled through the original tenants only. The industry no longer serves objection or “6.14” notices, as this practice often serves to express approval to the subtenancy, which can complicate an owner’s ability to later raise rent when the last original tenant leaves. Instead, if subletting is permitted by law or by the landlord, the owner should simply communicate acquiescence to the original tenant and do nothing more.

If the lease prohibits subletting, and there are no one-for-one replacement or direct family member issues, the owner must, upon receiving credible information that subletting has occurred, object immediately or forever lose the right to contest such a lease violation. Per local law, owners must usually issue a “three-day notice to cure or quit,” which allows the tenant three days to remove the subtenant. Do not allow much time to pass after you become aware of the situation. The passage of time, and acceptance of rent with knowledge of the offense, “waives,” or vitiates, the ability to move forward on a three-day notice. If, after the three-day period, the tenant has not complied, the next step is filing an eviction action with the superior court.

Owners often ask how they can ensure compliance within the three-day period. State law does not allow you to inspect the unit in order to prove that the subletter has vacated. Practitioners will usually advise keeping a diligent eye out by conferring with other building residents or, through management, observing the comings and goings of unauthorized subtenants. In sum, closely watch your buildings, as unauthorized subletting could overrun your housing and prevent you from de-controlling the unit once all original lease signers have departed.

DW

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