Feature
by Steven Rosenthal
Until recently there was substantial uncertainty regarding whether a San Francisco landlord could refuse a tenant’s request to share occupancy of his or her apartment with a new spouse or a domestic/romantic partner despite common lease provisions prohibiting additional occupants or subletting. Indeed, the advice commonly given was that it was illegal to refuse such requests at least in regard to married persons or registered domestic partners.
There were two sources for the uncertainty and perceived powerlessness in enforcing the unambiguous terms of standard lease agreements prohibiting additional occupants. The first was found in several San Francisco Superior Court decisions that invalidated such provisions. The second was the activist stance of the San Francisco Human Rights Commission, which advised lessors that the enforcement of their lease prohibitions was illegal and would subject them to proceedings before the Commission. The purpose of this article is to inform landlords of the current state of the law in order to assist them in handling these specific situations.
The court decisions and the enforcement actions of the Human Rights Commission were based on arguments relating to both the constitutional right to privacy of tenants and the San Francisco Housing Code Section 503(d). This code prohibits landlords from refusing to rent or lease based on the number of persons in a family. It defines “family” as related or unrelated persons wanting to live together in a “single integrated household,” which could mean virtually anyone.
For years, our law firm maintained that the adverse court rulings resulted from inadequate advocacy of the lessor’s legal position. Accordingly, our law office had been advising our clients that they could enforce their lease provisions despite those decisions and contrary to advisements from the Human Rights Commission. Unfortunately, due to the uncertainties caused by the court decisions and the Human Rights Commission’s position, most lessors chose not to enforce their lease prohibitions when faced with demands to allow occupancy by additional “family” members.
Recently, however, our law firm was able to test our belief in the legality of common lease prohibitions on additional occupants—whether members of a “family” or not—in a case entitled Artal v. Sharp. In Artal, an appellate panel upheld such provisions and declared San Francisco Housing Code section 503(d) to be unconstitutional.
In Artal, a studio unit was let upon terms that restricted the unit’s use by anyone other than the single, unmarried lessee and also prohibited subletting the unit. Our client sought our counsel after he received a letter from a tenant living in a studio apartment stating that she would be getting married shortly and that her husband would thereafter share the apartment with her. The tenant’s letter noted that it had been copied to the San Francisco Human Rights Commission, telegraphing the fact that she had been advised of her “right” to share the apartment with her prospective husband despite her lease’s provisions to the contrary. Our firm later learned that the tenant had spoken with or met with investigators from the Human Rights Commission approximately ten times, including several times prior to the time she contacted our client regarding her intentions.
The client was disturbed by the heavy-handedness of the tenant. In addition, he was puzzled by the literal application of Housing Code Section 503 that was advocated by both the tenant and the Human Rights Commission, which impaired his control over rental units he owned and managed. The client decided to litigate the issue through an appeal if necessary after learning of the previous court decisions and our belief that a different result could be obtained.
Not unexpectedly, the tenant prevailed in the trial court. On appeal, our firm successfully argued that although the privacy rights of tenants allow them to live with whomever they please, a landlord is not obligated to provide them with housing. We also successfully argued that Housing Code Section 503(d) was unconstitutional on preemption grounds, because state law prohibits local governments from enacting anti-discrimination legislation with respect to employment and housing. We utilized the legislative history of Housing Code Section 503(d) and its predecessor ordinance to show that Section 503(d) was anti-discrimination legislation cynically dressed up to appear otherwise.
In its decision, the Appellate Department of San Francisco Superior Court ruled that housing discrimination is governed by the California Fair Employment and Housing Act (FEHA). As a result of the Artal decision and an ensuing demand from our office, the Human Rights Commission has ceased its enforcement of Housing Code Section 503(d) and its dissemination of erroneous advice that lessors may not enforce lease prohibitions restricting the number and/or identities of authorized tenants.
As noted above, the Artal decision was largely based upon FEHA. Landlords, rental agents, and apartment managers should be familiar with FEHA. Under FEHA, landlords may not favor or disfavor applicants or tenants because they are married or unmarried or due to any other familial characteristic. Even inquiring into marital or familial status is illegal. Similarly, to inquire into or to make housing decisions based upon race, religion, sexual orientation, and the like is also illegal. If rental applicants or tenants voluntarily disclose this information, landlords should not take this into consideration in making rental decisions. Indeed, there are tenant advocacy groups and governmental agencies that send phony rental applicants to detect a landlord’s slightest misstep and to generate litigation based on determined violations. Although following this simple advice will greatly diminish the possibility of becoming embroiled in a discrimination lawsuit or providing a tenant with a defense to an eviction, landlords must contact counsel with experience in this area when confronted with the situations addressed in this article.
The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of the SFAA or the SF Apartment Magazine. The information contained in this article is general in nature. Consult the advice of an attorney for any specific problem. Mr. Rosenthal was been practicing landlord-tenant law for over 20 years in San Francisco. His law practice specializes in litigation and real estate- related areas.He can be reached at 928-7300. Copyright © 2002.