Domestic Partner and Family Protection Amendment to the SF Rent Law

The “Domestic Partner and Family Protection Amendment” to the San Francisco Rent Control Ordinance was passed in December 2004 by the Board of Supervisors and will not be vetoed by the Mayor. This new legislation makes a substantial change to the rent law and the procedures by which rent controlled properties are managed. Specifically, evictions are no longer allowed for the breach of a lease agreement’s prohibition against subletting and assignment when a tenant moves in the tenant’s child/children, parent, grandchild, grandparent, brother or sister, or the spouse or domestic partner of such relatives, or if the tenant moves in his or her own spouse or domestic partner. In essence, even if the rental agreement prohibits additional occupants and subletting, the landlord cannot refuse a request to move in a family member, the family member’s spouse/domestic partner, or the spouse/domestic partner of the existing tenant.

The one silver lining of this onerous law is that the owner may limit total adult occupancy to two persons per studio, three per one-bedroom unit, four per two-bedroom unit, six per three-bedroom unit, or eight per four-bedroom unit. Moreover, the landlord can limit occupancy to the parameters permitted under state or local health and planning laws, although these codes tend to be very liberal in allowing large number of occupants to live under one roof.

The Domestic Partner and Family Protection Act comes after the 1998 clarification of Rent Board Rules and Regulations Section 6.13, which prohibits the imposition of more rent solely for an additional occupant to an existing tenancy (including a newborn child), even if the rental agreement allowed for a raise in the rent if another person moved in. Not surprisingly, a substantial amount of litigation has arisen since 1998 with regard to landlords seeking to enforce subletting clauses even when a tenant sought to move in a domestic partner/spouse or close family member. Such actions were challenged by tenants on the ground that a Board of Supervisor’s amendment to the City’s code allows members of a family to live together, and that this twenty-plus year old ordinance, coupled with state and federal fair housing legislation, overrode provisions in rental agreements to prohibit or restrict such cohabitation. At least one local case, however, held that a landlord could strictly enforce a subletting clause and thereby prevent an existing tenant from moving in a domestic partner.

So tenant interest groups persisted. In the late 1990s, then-Supervisor Mark Leno sponsored passage of the “Leno Amendment,” which allowed a tenant to petition the Rent Board for a decrease in services if the owner did not permit a one-for-one replacement of a departing roommate. This amendment was passed to prevent landlords from enforcing leasehold covenants restricting occupancy to the named original occupants only, which would oftentimes have the effect of ending a tenancy when one roommate moved out because the remaining tenant(s) would suddenly be forced to pay all of the formerly shared rental obligation without having the opportunity to bring in a replacement roommate.

In 2000, Supervisor Gonzalez was elected on a pro-tenant platform. In 2002, he began pushing for substantial amendments to the rent control laws. The Domestic Partner and Family Protection Act, which was co-sponsored by Supervisors Gonzalez, Daly, Peskin and Ammiano, is a watered-down version of Mr. Gonzalez’s originally proposed modifications to the rent laws, termed by the housing industry as the Gonzo Amendments.

Despite the tenant group’s recent victory, what the City may find in 2005 is a major legal challenge to this act. The California Constitution states that the government cannot pass a law impairing the obligations under a contract. Arguably, the Domestic Partner and Family Protection Act substantially modifies rental agreements by vitiating the subletting and occupancy limitation clauses. Indeed, the PPMA lease’s provision regarding subletting/assignment as well as the permitted occupancy clause are now seriously undermined. Tenant advocates will undoubtedly stress that the City may legally pass rent control measures that contravene rental agreements, as the Rent Ordinance itself has superseded rental contracts for the past 26 years. Yet until a challenge is successfully mounted and adjudicated, this new legislation will prevent many types of subletting evictions. Consequently, owners and managers should undertake heightened precautions before serving eviction notices when the tenant moves a new person (or persons) into the unit.