We bought a tenant-occupied duplex and didn’t revise the lease at the time of purchase. The same tenant is still there, and there are some changes we’d like to make to the lease, including use of common areas. Can we change the lease, two years after taking ownership?
You must first serve a thirty-day written notice of change of terms of tenancy. Depending on what other changes you intend to make, you may modify or expand upon the terms of the lease to take effect at the expiration of not less than 30 days. Note that you must serve your notice identifying the changed or new lease terms by personal service or substituted service, or by posting and mailing a copy the same day.
However, being able to notice changes to your lease may not matter much because under the San Francisco Rent Board’s Rules and Regulations Section 12.20, which states that you cannot evict someone for violation of any such change of terms of your lease if you have unilaterally imposed them and they are not agreed to by the tenant. The exceptions to this rule are (1) if your change is one authorized by the Rent Ordinance (such as an annual allowable rent increase), or federal, state or local law, or (2) if the tenants agree to the change in writing after being informed in writing that they need not accept such new terms.
Some practitioners and managers believe that most tenants will adhere to the changes if they are reasonable. However, severing the ability to enjoy a housing service, such as the use of a backyard or deck, is not reasonable and is a violation of the rent law. Conversely, imposing a “no smoking” rule in common areas or limiting use of a noisy laundry machine to daytime and early evening hours is reasonable. As such, you are encouraged to impose reasonable house rules subject to the admonitions of this article.
One notable exception to this Section 12.20 rule is the “attorney fee” clause in many older lease agreements. This provision, used commonly in commercial leases, requires that the loser in any eviction action pay the winner’s legal fees and court costs. Years ago, the SFAA struck this clause from the SFAA lease agreement because tenants are almost always judgment proof, meaning you cannot collect fees from them, whereas landlords almost always have deep pockets; in essence, this clause raised the stakes and stress level for landlords. Unilaterally striking this clause is advised and doing so does not violate Section 12.20, as a tenant cannot “violate” a new “each side bears their own legal fees and costs” lease covenant.
So, unless your tenant agrees to the change in terms of the tenancy in writing, your tenant is not obligated to accept any of your new terms of tenancy. That means that if your tenant violates any of your new lease terms that were not previously in effect at the inception of tenancy, like the use of common areas, you will be able to enforce those rules through the eviction process. Without the threat of an eviction, there is no real motivation for the tenant to agree to the change.