How to Evict a Subtenant in San Francisco
My two roommates and I recently had a subtenant that I'm going to refer to as The Horrible Human Being. This guy was confrontational, loud, arrogant, and disrespectful; a total jerk. In the process of trying to get rid of him, we learned a lot about tenant laws and eviction in our home city of San Francisco.
NOTE: I am not a lawyer and my advice is not meant to take the place of professional legal counsel.
A Quick Warning
Eviction is extremely difficult in San Francisco. The rental laws within the city limits are slanted heavily in favor of renters. Those laws are intended to protect renters' rights, but they make it almost impossible for landlords and master tenants to evict problem renters. If you have a strong case for eviction, be sure to do everything by the books and consult with a lawyer throughout the process to protect yourself from lawsuits.
If you do not have a strong case for eviction, your best bet is to privately work things out with your problem subtenant.
Types of Tenant Relationships
Cotenant: A cotenant is someone who has equal standing with you as a renter. If two or more people rent a property together and all of them sign the lease, those people are cotenants.
Master Tenant: A master tenant is a person who signed the original lease or agreement with the property owner or property manager. All people on the original lease are master tenants, and they are also cotenants to each other.
Subtenant: A subtenant is a person who is subletting or renting space from one or all of the master tenants. A subtenant does not necessarily have any kind of agreement with the property owner or property manager (though most owners require approval for any and all subtenants on their property). If master tenants sublet to more than one subtenant, those subtenants are also cotenants to each other.
Cotenants can not evict each other, and a subtenant can not evict a master tenant. But a master tenant may be able to evict a subtenant under certain circumstances.
Landlords and Eviction
Telling your landlord about the problem may seem like the easiest way to have a subtenant evicted, but in reality, the landlord or property manager will probably not be able to help. A landlord can not evict just one person. Even if you can prove you have Just Cause for evicting your subtenant, your landlord can only evict everyone on the lease, thereby negating your agreement with your subtenant.
It's good to keep the landlord or property manager informed about any serious problems between roommates, but the subtenant's agreement is with the master tenants, not the landlord, (even though the landlord may have given approval, required a background check, etc) so the master tenants are typically the only ones who can evict a subtenant.
Is Your Subtenant Legal?
Before attempting to evict your subtenant, you need to determine whether or not he or she is renting legally. Do you have the permission or approval of your landlord or property manager to sublet the property? Does your lease give provisions for subletting?
If your subtenant is occupying the property without the landlord's knowledge or permission, trying to evict him or her is pretty much guaranteed to get you evicted as well. Plus, should your landlord find out, he or she may be able to take legal action against you for violating the lease, and your subtenant may be able to take legal action against you for wrongful eviction.
If you're in this boat, your best bet is to work things out privately with your subtenant, or move out yourself.
- Do not try to accuse your subtenant of trespassing or claim to the landlord that he/she is squatting illegally. If the subtenant can prove he/she has been living on the property (with received mail, checks for rent and utilities, etc) he/she may still be able to take legal action against you for wrongful eviction
- Do try explaining to your subtenant that if the master tenant or tenants move out, he/she will have to leave anyway, as per the San Francisco Rent Ordinance, since he/she has no legal agreement with the landlord. (Basically, if they make things so bad that you move out to get away from them, they'll be SOL for housing.)
If your subtenant has the landlord's approval, like The Horrible Human Being did with us, keep reading.
Is Your Home or Apartment Rent Controlled?
If your San Francisco home or apartment was built after June, 1979, you're in luck. These newer buildings are not subject to rent control laws, and the eviction process is much easier. You should be able to give your subtenant proper notice and then begin the legal eviction process.
If your San Francisco home or apartment was built before June, 1979, like ours was, evicting your subtenant is going to be much harder. Keep reading to find out more.
How Do I Find Out When My House Was Built?
If you don't know when your house was built, Zillow is a good place to start. It has the dates posted for many San Francisco buildings. Simply type in your address, select the correct result, and look for the date under "year built."
The 15 Just Causes for Eviction in San Francisco
If your San Francisco rental house or apartment is rent controlled, it's time to get up close and personal with the 15 Just Causes for Eviction. These evictable causes are your last shred of hope. They are THE ONLY way you can legally evict:
1. The tenant has stopped paying rent, frequently pays late, or frequently bounces checks
2. The tenant has breached the rental agreement or lease and failed to correct the problem with notice
3. The tenant is creating a nuisance, damaging the property, or “creating a substantial interference with the comfort, safety or enjoyment of the landlord or other tenants in the building”
4. The tenant is conducting illegal activities on the property
5. The tenant’s prior rental agreement or lease has ended and the tenant refuses an extension under the same or equivalent terms
6. The tenant has refused the landlord access to the property (for repairs, improvements, etc)
7. The master tenants move out, leaving a subtenant with no approval or agreement with the landlord
8. The landlord wants to move him/herself or a close relative into the unit for a period of 36 consecutive months or longer
9. The landlord wishes to sell a unit which has lawfully been converted to a condominium
10. The landlord seeks to demolish the unit or remove it from the rental market
11. The landlord wishes to temporarily remove the unit from the rental market to “carry out capital improvements or rehabilitation”
12. The landlord wishes to carry out “substantial rehabilitation”
13. The landlord wishes to remove the entire building from the rental market
14. The landlord wishes to recover possession of the unit for less than 30 days to deal with lead paint problems, as required by the San Francisco Health Code
15. The landlord wishes to demolish the unit in order to rebuild
NOTE: If the landlord also lives in the rental unit, he or she can evict without Just Cause. If you are renting space in your landlord's home, consider asking him/her for help.
Numbers 1-4 are the only cases that apply to the relationship between a master tenant and a subtenant. Numbers 5-15 must be enforced by the landlord and usually must result in eviction of all tenants, including the master tenants (so don't try to convince your landlord to enforce them unless you're ok with being kicked out too).
Just Causes 1-4
Let's examine the Just Causes one by one.
Just Cause #1: The tenant has stopped paying rent, frequently pays late, or frequently bounces checks.
If the problems with your subtenant are financial, you probably have a good case for eviction. But you still need to take a couple steps here.
- If your subtenant has stopped paying rent, you need to give him/her a written 3-day notice to correct or vacate. Try to present the notice personally or send it by certified mail so that the subtenant can not deny receiving it.
- If the subtenant has not paid the rent within the 3 days and has not vacated the premises, begin the formal eviction process with the courts to have him/her removed.
- If the subtenant does pay up within 3 days, you can not evict, unless you can prove that he/she fails to pay the rent frequently. Keep records. If you have to issue a 3-day notice more than once, consult a lawyer to see about starting the eviction process.
- If your subtenant frequently pays late and/or bounces checks, be sure you keep detailed records. One late payment or bad check is probably not enough to force an eviction. Write down the dates and details of all such occurrences and keep copies of the checks. Consult a lawyer to see if the behavior is frequent and severe enough to warrant eviction.
Just Cause #2:The tenant has breached the rental agreement or lease and failed to correct the problem with notice.
If your subtenant is breaching the lease by smoking in the unit, keeping a pet, making unauthorized changes to the unit, etc, you may have a good case for eviction.
- Be sure to record when and how your subtenant has violated the lease. You may need to use that information later if he/she tries to fight the eviction.
- Issue a 3-day notice to correct or vacate.
- If he/she has not corrected the violation or vacated the premises, begin the legal eviction process.
- If he/she has corrected the violation, you may still be able to evict, but you will have to prove that the subtenant habitually and severely violates the lease.
Just Cause #3:The tenant is creating a nuisance, damaging the property, or “creating a substantial interference with the comfort, safety or enjoyment of the landlord or other tenants in the building.”
This is, unfortunately, the most difficult to enforce. The Horrible Human Being was not paying late, violating the lease, or doing anything illegal, but we figured surely we had him with #3. He constantly picked verbal fights, made tons of noise, and kept us awake at all hours. We consulted a lawyer about evicting him on these grounds. The lawyer explained that since the language of #3 is so vague, the courts are very reluctant to enforce it.
- Basically, in order to evict on these grounds, master tenants must prove that the subtenant is endangering or threatening them with his/her behavior or prove through police records that the subtenant has had frequent noise complaints, has caused a domestic disturbance, etc.
- The lawyer basically told us not to bother trying to evict with Just Cause #3 since it would only come down to a he-said/she-said situation in court and that evidence would have to be extremely explicit and compelling to be evictable.
Just Cause #4: The tenant is conducting illegal activities on the property.
If your subtenant is engaging in illegal behavior on the property, you have an extremely strong case for eviction.
- The crime must be serious and involve the unit (e.g. your subtenant is making meth in his/her room or engaging in prostitution on the property).
- Inform the landlord and the police immediately. You may need to prove that your subtenant was performing illegal activities and a police report is really the only way to do that.
- Give a 3-day notice to vacate.
- If the subtenant has not left the property in 3 days, begin the legal eviction process with the courts.
In the end, my roommates and I did not have grounds to evict the Horrible Human Being. But we got together and all asked him to move out. He agreed, either because he was unaware that we couldn't legally evict him or because he just didn't want to live with 3 other people who refused to tolerate his bad behavior. He took his time finding a new place, and we were powerless to speed the process along, but after a month, he finally did move out.
(Not without making things miserable for us, of course. He left his room a disgusting mess, screamed in our faces, refused to pay his last few days of rent, and left the front door to our home wide open when he finished moving. But we all toasted the day anyway, we were so glad to have him gone.)
How to Protect Yourself from a Bad Subtenant
We had to go through a crappy experience with the Horrible Human Being, but we learned a lot about subletting and eviction laws. We also corresponded with the San Francisco Tenants Union by email and got some good advice on making sure that the same situation never happened to us again. Here are some tips:
- Be sure that your subtenant is approved by your landlord or property manager before moving him/her in.
- Draft a written subtenant agreement in which your subtenant waives his/her rights to Just Cause protection. This is perfectly legal and it allows the master tenants to evict subtenants for reasons other than the 15 Just Causes.
- Include in your written subtenant agreement that the first month of his/her residency in the unit is on a trial basis, and that if all master tenants are happy with the situation, the subtenant will be permitted to remain, but if not, the subtenant will agree to vacate at that time.
- Charge subtenants a deposit, even if it is not required by your landlord or property manager, and include specific instances in which some of the deposit money may be withheld in your subtenant agreement (e.g. to cover unpaid rent, unpaid utilities, damages to the unit).
Sample Subtenant Agreement
Here is the agreement my cotenants and I use to sublet now. Be sure your agreement is signed and dated by the subtenant and all master tenants. Each person should have his/her own signed and dated copy, and the landlord may want a copy as well.
Subtenant Agreement for [insert full address of the property]
I understand that I may end my residency at [insert full address of the property] at any time and for any reason providing I give 30 days notice to the master tenants.
I understand that my security deposit will be returned to me upon the return of the premises to the master tenants, but that money may be withheld for damages to the premises, unpaid rent, or unpaid utilities.
I hearby waive my right to just cause protection and agree that I may be evicted for any reason including reasons other than evictable causes so long as the master tenants provide 30 days notice to vacate the premises.
I agree to pay [insert deposit amount] deposit for a single bedroom at [insert full address of the property] and [insert rent amount] monthly rent so long as the total rent for the house remains [insert full cost of the unit].
I understand that my residency at [insert full address of the property] is pending a 1-month trial period. I understand that my residency is also pending approval from the property manager.
I understand that I will be responsible for a portion of the utilities divided equally between occupants.