Given the lack of affordable housing, especially in major cities like San Francisco, landlords should not be surprised to find changes in occupancy in their rental units without their consent. Landlords might inadvertently change the status of those occupants to “tenants” and unwittingly confer tenant rights on those occupants.

One such common scenario is a tenant taking on roommates after entering into a residential lease.  Unless they personally execute a lease with the landlord or the landlord otherwise consents to their occupancy, roommates are neither in privity of contract nor privity of estate with the landlord—i.e., they can neither bind the landlord to the benefits of the lease nor be held liable for the rent reserved under the lease.

While the lease may contain restrictions on occupancy, assignment, and subletting, an occupant may become a tenant although not a party to the lease if they remain in occupancy with the landlord’s implicit consent. Consent was found where a landlord had knowledge of the unauthorized occupant but did not object and where a landlord repeatedly accepted the unauthorized occupant’s personal checks in payment of rent.

The implication is these “roommates” occupying the space with landlord’s consent are treated as “tenants” under local eviction control ordinance such as the San Francisco Rent Ordinance and Oakland Just Cause for Eviction Ordinance. Under these ordinances, a “roommate” may have the rights of a “tenant” where the landlord approved the roommate’s occupancy, regardless of whether the consent was express or implied. Consider the following:

• By accepting a roommate’s personal rent checks and failing to object when the tenant listed the roommate as an occupant on each year’s re-rental application, Landlord acquiesced in the roommate’s occupancy, entitling the roommate to the San Francisco ordinance’s rent-increase protections even though she was not named as a tenant in the lease. Parkmerced Co. v. San Francisco Rent Stabilization & Arbitration Board (1989) 215 Cal. App. 3d 490, 494.
• Tenant’s voluntary departure from the rented apartment did not trigger vacancy decontrol pursuant to Civil Code section 1954.50, et seq. or the applicable rent control ordinance as to Tenant’s Son. Although Son had commenced occupancy during Tenant’s term ostensibly only on a temporary basis and without obtaining Landlord’s permission, Landlord regularly accepted the full rent from him knowing Tenant no longer lived in the unit and negotiated a rent increase directly with him. Son had thereby become a tenant in his own right. Cobb v. San Francisco Residential Rent Stabilization & Arbitration Board (2002) 98 Cal. App. 4th 345, 352; see also Getz v. City of West Hollywood (1991) 233 Cal. App. 3d 625, 629-630.
• A roommate whose occupancy was expressly approved and authorized by the landlord was entitled to protection under the Berkeley eviction control ordinance (limiting eviction to one of 11 specific grounds) even though the tenant named in the lease had vacated. It was immaterial that the tenant’s lease flatly prohibited assignment or subletting: even assuming the roommate could be viewed as a subtenant, the lease expressly authorized “roommates” and the ordinance expressly extended its tenant protections to “any other person entitled to the use or occupancy” of the rental unit. DeZerega v. Meggs (2000) 83 Cal. App. 4^th 28, 42.
• In contrast, a deceased tenant’s mother who paid rent in the tenant-daughter’s name after the daughter’s death, and who was “virtually unknown” to the landlord, was not a lawful occupant entitled to eviction control protection under the Santa Monica ordinance. The mother’s rent payments did not put her in occupancy with the landlord’s implied consent because she did so under the subterfuge that her deceased daughter was making the payments. Miller & Desatnik Mgmt. Co., Inc. v. Bullock (1990) 221 Cal. App. 3d Supp. 13, 19-20.

Some of the other unintended consequences include the following:

• A few years ago, we represented a landlord who was sued by a tenant for uninhabitable conditions. Habitability claims have a four-year statute of limitations. The tenant had leased the premises, which was subject to the San Francisco Rent Ordinance, for over 20 years, and right before filing suit, allegedly vacated the premises because of the uninhabitable conditions. In his deposition, plaintiff testified about the horrible conditions, including mold, how the conditiions affected his health and relationship with his son who could not live with plaintiff because plaintiff did not want to subject him to the unhealthy apartment, and how he had intended to live at the premises for the rest of his life (plaintiff was about 50 years old). The value of plaintiff’s loss of a rent-controlled unit in one of the most expensive housing markets in the country was close to $3,000,000.  Right before settlement, we discovered plaintiff had not lived at the premises for over five years before filing suit. He had sublet the premises to various “roommates” without written consent from our landlord client. Our client was aware of the unauthorized occupants but did not object, believing they were visitors. It was a couple of these “roommates” who disclosed to us plaintiff had not lived at the premises for over five years. At the end the case settled for a fraction of the demand.
• In another wrongful eviction case, plaintiff claimed she was a lawful tenant under a written lease when she was locked out of her apartment. Our client was the former owner and landlord of the apartment building, which was covered under the Oakland Just Cause for Eviction Ordinance, when plaintiff’s occupancy started. Our client was aware plaintiff had been living at the apartment unit, accepted partial payment of rent from plaintiff for about year, and responded to service requests from plaintiff (i.e., text messages between our client and plaintiff). One of the service requests was to repair the lock on the entry door to the rental unit. Plaintiff, from the time she started her occupancy up until a year before the lockout, paid rent to the tenant on the lease who then paid the full amount of the rent to our client. During the year leading up to the lockout, disputes between the co-occupants arose, and plaintiff started to pay her portion of the rent directly to our client which our client readily accepted with out question or objections. Around this time, the tenant on the lease on her own filed a defective unlawful detainer[1], a forcible entry lawsuit, and for a restraining order against plaintiff. When the lawsuits were unsuccessful, the tenant asked our client to change the lock on the entry door because “someone” kept on breaking it (which our client did) and removed plaintiff’s personal belongings from the unit. Around the same time, the new building owner took over the management of the property and was asked by plaintiff to let her back into the unit. The new owner refused because plaintiff was not a tenant on the lease and was not mentioned in the estoppel certificate as an occupant. Plaintiff filed a wrongful eviction lawsuit against our client and the current building owner. The case settled with our client contributing a fraction of the demand and less than the current owner.

Key Takeaway

• Particularly in rent control and eviction control jurisdictions, landlords should include in their leases express written prohibitions or restrictions on tenant rights to take on roommates and monitor tenant compliance with such provisions so as not to be held to a waiver (implied acceptance of the roommate’s occupancy). Failure to adopt this practice may effectively result in “revolving door” tenancies (where the roommate becomes a “lawful occupant” or “tenant” protected by rent controls or eviction controls).
• Closely monitor occupancy.
• If a landlord has knowledge of an unauthorized occupant, object to the unauthorized occupancy.
• Do not accept personal checks or other forms of payment from unauthorized occupants.
• Do not otherwise treat an unauthorized occupant like a tenant, such as responding to their repair requests.

[1] Upon agreeing to pay rent to the tenant, a roommate may become a subtenant on a month-to-month basis. As a subtenant, the roommate’s rights are against the tenant-sublessor (subtenant’s rights can be no greater than tenant’s under master lease). A subtenant who defaults in rent due under the sublease may be evicted by the tenant in an unlawful detainer.

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