Q:  We have a 90-year-old tenant who has been in our one-bedroom unit for 65 years. Four months ago she went into an assisted living facility; her daughter continues to pay the rent but also says that her mother can no longer live alone and will not be moving back to the apartment. Under these circumstances, is there a way to reclaim the apartment without filing a formal eviction notice?

A: This factual scenario is becoming more and more common. Based upon figures produced by the United States Census Bureau, 14.8% of the San Francisco population was 65 years of age or older.   Despite the fact that there are a growing number of elderly tenants who no longer reside in their rental units, failure to reside in the rent unit is not a basis for evicting a tenant or terminating a tenancy.  However, the San Francisco Rent Ordinance does provide a mechanism for a Landlord to decontrol a unit where the original occupant no longer principally resides in that unit and there are no other tenants in occupancy. 

In June 2001, the landlord Rent Board commissioners sponsored a regulation that would allow a Landlord to de-control a rental unit in situations when the tenant did not use apartment unit as their "principal places of residences." This rule was prompted in an effort to dissuade people from holding onto valuable rent controlled units even though they lived elsewhere.  This rule also found support among Tenant Rent Board Commissioner as it is consistent with the philosophy behind rent control which was enacted in order to increase the City's already short supply of affordable housing.  The rule, was codified in the San Francisco Rent Ordinance in Section 1.21 of the Rent Board Rules and Regulations.  Section 1.21 requires that in order for the rent to remain at the rent controlled price, the premises "must be the tenant's usual place of return.".  If it is not, the owner can, upon a favorable determination by the San Francisco Rent Board, raise the rent to fair market value.  Where for example, in the question posed above, the tenants rent is based on 65 years in occupancy, raising the rent to market rate would more than likely prompt the tenant or the tenants daughter to surrender possession of the unit.

In order for a Landlord to increase the rent of the unit under Section 1.21, the Landlord is required to petition the Rent Board for a determination that a rent increase under Section 1.21 is warranted.  The Landlord must file a petition with the rent board after which the Rent Board will hold a hearing on the issue of whether the tenant principally resides in the rental unit.  In the question posed, such a hearing would no doubt be focused upon whether the tenant will return from the assisted living facility.  Given the fact that the daughter has told the Landlord that the mother cannot live alone and would not be returning, it seems almost certain that the Rent Board would decide in favor of the Landlord on the 1.21 petition.  A decision by the Rent Board in a 1.21 hearing can however take up to 90 days to be rendered.  Since any rent increase over 10% must be imposed via the service of a Sixty Day Notice, I would recommend that the Landlord serve the rent increase notice immediately after the 1.21 hearing.  The Landlord should include language in this Sixty Notice that the rent increase is based upon a determination in the Landlords favor, to be rendered by the Rent Board in the 1.21 hearing and will only be effective upon a determination in the Landlords’ favor.  If a determination by the rent board is not in the Landlords’ favor, and the Landlord does impose the rent increase prior to the decision, the Landlord will be required to refund any increase paid by the tenant.  However, by serving the Sixty Day Notice immediately after the conclusion of the hearing, a Landlord avoids having to wait to impose the rent increase for perhaps up to an additional 90 days, the time it takes the rent board to render the decision. 

Although a tenants failure to reside in the rental unit does not allow a Landlord to terminate and recover possession of that rental unit, a rent increase to market rate permitted under Section 1.21 will surely force a tenant to decide whether it is worth it to them to keep the rent controlled unit, especially if they are not living there.  In the present question posed, it seems unlikely that the daughter would seek to hold on to the unit when the differential between the current rent and market rent is no doubt extreme. Either the daughter will surrender possession or at the very lease the Landlord will be collecting market rent without having to go to the time and expense of rehabbing the unit.  In either case, the Landlord is a winner.                                                            

Daniel R. Stern, Esq.

WASSERMAN STERN LAW OFFICES