Legal Corner Q & A

Unusual Subtenant Situations

By Various Authors

Q. One of our elderly tenants recently passed away. In making arrangements with her family, I learned that a caregiver, whom I thought was just a visiting nurse, had actually rented a small room in the unit and occasionally slept over. Now the caretaker is claiming the apartment is hers. What can I do?

A. As long as the owner did not accept rent or any other non-monetary consideration from the original tenant’s caretaker, either before or after the death of the original tenant, the owner has two options. The owner may either allow the person to remain in possession of the unit at a newly established market rental rate or may be entitled to evict the subtenant as an unapproved subtenant holding over at the expiration of the original tenant’s term. Legally speaking, the tenancy of the original tenant expired upon her death; any right the subtenant had to continue in possession as a subtenant also expired at the time of the original tenant’s death.

Under the first option, the owner may allow the subtenant to remain in the unit at market rent, through the exercise of the owner’s rights under the state Costa-Hawkins Act (Civil Code §1954.52-535). As long as the subtenant entered into occupancy after January 1, 1996, the owner may raise the rent for her continued occupancy of the unit without the normal restrictions of the San Francisco Rent Ordinance (S.F. Admin. Code, Chapter 37). However, the Rent Ordinance requires an owner to petition the Rent Board and establish the right to the Costa-Hawkins rent increase prior to collecting any amount of rent that exceeds the normal annual limits of the Rent Ordinance (Rules and Regulations, §6.14).

Please note that if the owner does any of the following, he/she has arguably waived the right to impose the Costa-Hawkins rent increase: (1) affirmatively represented to the subsequent occupant (the caretaker, in this case) that she could continue in occupancy at the same rental rate as the original tenant, (2) failed to serve a rent increase within 90 days of the receipt of a written notice that the original tenant has vacated (or in this case, has died) or (3) failed to reserve (usually through the service of a 6.14 Notice) his/her right to raise the subsequent occupant’s rent within 90 days of a written notice by the original tenant of the subsequent occupant’s commencement of occupancy and the acceptance of rent from the original tenant. However, from the facts set forth in this question, apparently the original tenant did not provide written notice of the caretaker’s occupancy in the unit. As a result, the owner remained unaware that the caretaker had in fact entered into a subtenant relationship with the original tenant until after the death of the original tenant.

Under the second option, the owner could pursue an eviction of the subtenant under S.F. Admin. Code §37.9(a)(7), which permits an owner to evict an unapproved subtenant holding over upon expiration of the term of the tenancy. In this situation, the owner had not approved the caretaker, unaware that the latter was actually a subtenant of the original tenant. One matter that would pose a factual concern and might result in a trial would be the issue regarding the owner’s lack of approval for a subtenant in the unit. The subtenant could in fact falsely testify that the owner had given approval of her subtenancy. In any event, the owner in this situation should consult with an experienced attorney in order to properly handle this situation.
– Jak Marquez

Q. Is there a requirement that owners strap down water heaters in their units?

A. There is a California law (Health and Safety Code Sections 19210-19217) that requires owners to strap, brace or anchor water heaters in order to resist falling or displacement. Under an amendment to those sections, an owner of residential property may not evict a tenant based upon the property’s lack of compliance with this required water heater bracing. When installing a new water heater in San Francisco, an owner must first obtain a permit prior to installation, and then the Department of Building Inspection must approve the final installation. A tenant complaint about an improperly installed water heater could result in a Notice of Violation.

In addition, the state’s Uniform Plumbing Code requires that a new or replacement water heater located in a garage must be installed in such a manner that the ignition point is at least 18 inches above the floor. Other local cities have even more stringent requirements. For example, Daly City requires the elevation of already existing water heaters.

Some rental agreements such as the PPMA Residential Tenancy Agreement (Paragraph 19) have provisions that state that the premises are presumed to be in a safe and habitable condition unless and until the owner receives written notice to the contrary. However an owner’s duties, under the state’s warranty of habitability cannot be waived by the tenant. In previous Legal Corner Q & A columns, we have listed and discussed conditions covered by the warranty of habitability. Under applicable law, these include a water supply that produces hot and cold running water as well as a heating system that conforms to applicable law at the time of installation. The Uniform Plumbing Code would set habitability standards in this area. However, there is uncertainty about whether a non-strapped water heater, by itself, is a substantial enough issue to constitute a breach of the warranty of habitability.
– Lawrence M. Scancarelli & Mark Mallah

The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of the SFAA or the San Francisco Apartment Magazine. The information contained in this article is general in nature. Consult the advice of an attorney for any specific problem. Jak Marquez is with Beckman Marquez, LLP, 415.495.8500. Lawrence M. Scancarelli and Mark Mallah can be reached at 415.398.1644. Copyright © 2004.