Legal • October 1, 2004
Landlord / Tenant Law 101 - Assignees, Subtenants, and Boyfriends From Out –Of-Tow
The Rent Board recently told readers of the Berkeley Voice that a landlord whose long-time tenant was at death’s door would continue to be bound by the existing rent ceiling following the tenant’s demise. Why? The Landlord, prior to 1999, had allowed the man’s son to move in as a caregiver. The son had never signed anything; he stood in the shoes of the father. The Board added, generously, that there might be a Costa Hawkins adjustment down the road if and when the son himself decided to vacate….
In another case, a close friend was renting to a young, wealthy heiress who asked one day if her out-of town boyfriend could move in for a few days “while he was getting his feet on the ground”. A “few days” turned into weeks, and then months. The lease was for occupancy by one person only. Nonetheless when my friend suggested that it might be time for the boyfriend to move on he got a summons to appear before the Rent Board.
No issue under rent control is as perilous as whether a housing provider has the right to enforce lease provisions against assignments, subletting, and other devices by which a tenant may move new people into a unit while avoiding a rent adjustment under the California Civil Code. This article sketches the high points.
The first thing to know is that there is a difference between an assignment and a sublease. Where you allow an assignment, the new person enters into a direct contractual relationship with you and replaces the original tenant. Where the rent isn’t paid, or the apartment is trashed, you go after the new person, not the original tenant (unless he/she has specifically agreed to be bound). This raises obvious questions about security deposits and your right to a rent adjustment if all original tenants have left the premises. For these reasons it is far better, if a tenant wants to assign, and himself to leave, for you to agree simply to terminate the old lease and start fresh with a new one.
A sublease is most often used where the original tenant remains on the premises but wants to reduce his/her rent burden by bringing in a roommate. In such situations you do not have a contractual relation with the subtenant, and should not accept money from him/her. The contract is with your original tenant; when he and all other original tenants are gone, you may adjust the rent charged to the subtenants and may ask for a new lease with them, provided only that you have followed the correct procedural steps. But if you have accepted rent from the subtenants after notice of the departure of the original tenant(s) you may find yourself stuck with the new crew at the old rental level.
Many leases have across- the- board prohibitions of assignments and sublets. Anti-assignment clauses are usually enforceable provided you don’t waive your rights by accepting rent from the new guy in the unit. Anti-sublet provisions are different. Existing regulations as well as a part of Measure P (on this November’s ballot) prevent you from “unreasonably” refusing space to a roommate (who doesn’t have to be called a sub-tenant, just moving in establishes the relationship) unless you can show that the total number of residents exceeds the maximum set by the lease, or the “base occupancy level”, whichever is greater. The “base occupancy level” is defined as the number of inhabitants in the unit in 1979-80, a fact which may be difficult to pin down.
When does the landlord escape the tangle of entitlements that arise whenever there is a “group living arrangement”? State law seems to say that it is when the last “original tenant” permanently vacates the premise, provided that the stay-behinds have moved in after January 1, 1996. Needless to say, the tenant’s departure may not always be apparent to the landlord, and rent board regulations offer some protection where the landlord is kept in the dark by new occupants. But note well the many potential slip-ups: the lease may not specify the number of occupants, or the Rent Board may decide that the “base occupancy level” was, or should be, higher than you thought. Or it may conclude that the new occupant is a “replacement roommate”. Or one of the remaining tenants may pre-date 1996. Or because of the wording of the lease, a “roommate” or “subtenant” may actually be deemed to be a tenant in his/her own right.
Elsewhere on this website, Greg McConnell has proposed language that, while permitting assignments and subleases, tries to maximize your ability to reject the bad apples. As always the advisability of this (or any other “model” language) depends on your own unique situation. Where there are questions you should seek professional advice.