I own two flats. I live in one and rent the other. I plan on
traveling to Europe for two months this summer and would like to
sublet my owner’s unit to help cover the costs of my trip. A friend of
mine is interested in renting my unit for the summer. However, I’ve
been cautioned that he could gain tenancy rights. Is that true?
Yes, it is true. The day she moves in and pays you rent she becomes a
tenant. There are countless stories throughout the City of owners
moving in friends and then being stuck in a nightmarish situation.
Should you feel compelled to have someone move in while you are traveling, have the friend sign the current version of the SFAA Residential Tenancy
Agreement and specify that the term is for two months. Most importantly, add language that states the following: “Tenant is Owner’s roommate. Tenant acknowledges that Owner resides in the Premises as
Owner’s principal place of residence and, even if Owner is traveling or occasionally absent Owner does not reside principally or permanently anywhere else besides the Premises. Tenant, as Owner’s roommate, has no exclusive use of the Premises but rather shares the Premises with Owner. Since Owner resides in the same rental unit as Tenant, Owner may evict Tenant (terminate the tenancy) without just cause under the Rent Ordinance.”
This language is important because the rent law permits a landlord who resides in the same rental unit with her tenant to evict her tenant without “just cause.” Normally, a tenancy may only be terminated by one of the 16 just cause reasons under the Rent Ordinance, such as owner move-in or nonpayment of rent. However, please be aware that many savvy tenant lawyers will argue that your subtenant is not a roommate but rather a tenant in her own right and that just cause is required to terminate the tenancy, as your total absence from the unit may lend credence to such a position. While there is no clear law on what constitutes a “roommate” versus a non-roommate subtenant, owners have lost the ability to evict without just cause when the tenant has her own kitchen or bathroom or the owner has multiple roommates/subtenants in the same apartment. As such, the insertion of this roommate language is not enough to entirely protect you.
In the event your tenant does not leave when you return and argues that she was not a roommate given your absence, you would then have to invoke just cause to terminate the tenancy. The likely just cause would be owner move-in, or OMI. This would require you to serve a proper notice and to commit to live in the flat as your principal place of residence for the next 36 consecutive months. Moreover, this flat would become the owner move-in designated unit in the building for all future OMI evictions. In addition, the tenant could still make you go to court and argue that you are not acting in good faith, and if the court found against you your ability to remove the tenant on this basis would be precluded.
In sum, do not sublet your flat when you travel this summer. The rent you make off of the transaction would hardly compensate you should your “friend” decide not to depart upon your return. If you do decide to enter into this transaction, please follow the lease drafting suggestions outlined above.