If you have rent control your landlord can't give you a rent increase above two or three percent a year right? Not exactly. Enter Rent Board Rules and Regulations Section 1.21 . Section 1.21 allows a landlord to raise a tenant's rent to market rate where the tenant no longer uses their home as their "principle place of residence." Our office regularly represents tenants in rent increase disputes at the Rent Board.
Section 1.21 allows a landlord to issue an unlimited rent increase once a tenant is no longer “in occupancy." To be “in occupancy” means that the unit must be is the tenant’s your principal place of residence. This law is meant to prevent tenants from moving away but hanging onto a cheap rent-controlled pied-a-terre.
If a landlord thinks for whatever reason that they have evidence a tenant doesn’t live in their home, the landlord can file a 1.21 Petition with the San Francisco Rent Board in order to raise the rent on an existing tenant to market rate.
Landlords don’t want to miss out on opportunities to charge the highest rent possible on a unit that tenant does not even live in. Unfortunately, this law can be used as a weapon. We see this most often when a building has undergone a change in ownership. New owners will regularly perform an “audit“ of their building to see if there are any tenants who may be vulnerable to a rent increase.
In order to issue a rent increase under 1.21, the landlord must file a petition with the San Francisco Rent Board. The Rent Board then schedules a hearing. At the hearing, an administrative judge will listen to both sides’ arguments and review the evidence presented. Because these petitions are filed by the landlord, the landlord has the burden of proving the property is not a tenant's primary place of residence. Note that 1.21 petitions are different than a rent increase pursuant to Costa Hawkins.
The Rent Board determines a tenant’s primary residence based on a number of factors, including:
If the judge rules in the landlord’s favor, the landlord can impose the rent increase. Tenants do not have to pay the increased rent amount until the landlord has prevailed at the Rent Board. However, in cases where the landlord does prevail, the tenant is liable for that increase going back to the date it was first issued. (That is, if your landlord issued a $200 rent increase starting in September, and your case was tied up at the Rent Board until February, you might owe an extra $1,200, to make up for those six months that your landlord didn’t get the $200 increase.) Because of this, tenants who are fighting 1.21 rent increases should try to sock away money in case they end up losing their case and need to pay up.
Being “in occupancy” doesn’t mean that you have to sleep in your apartment 365 days a year. It doesn’t mean you can’t travel, and it doesn’t even necessarily mean you have to sleep in your apartment the majority of nights. It simply means that your apartment is your “usual place of return.” In other words, when you’re not traveling for vacation or family matters, or staying elsewhere as required by hospitalization, school, or work (or military service, jail, or prison), you generally end up back at your apartment. That being said, there are a number of factors that can be useful in showing the Rent Board that your apartment is your primary residence.
If you’ve recently had to travel due to school, work, or family issues, you might submit plane tickets, hotel receipts, or affidavits from supervisors describing the nature of the travel.
Landlords often hire private investigators who can run detailed background checks on tenants. Beware that landlords will be able to see if a tenant owns property, or is registered to vote elsewhere. Oftentimes, a background check is all a landlord will do before they fire off a rent increase notice. Sometimes, however, private investigators will stake out an apartment building, take photos of residents coming and going, and interview neighbors.
If a tenant has sublet their place to a friend or third party, doesn't pay a portion of the rent, or registers at a different address, chances are that a landlord will find out.
If a tenant owns property elsewhere, a landlord will likely dig up those records. It’s not against the law to own an out-of-town vacation home or rental property. However, many homebuyers unthinkingly take a homeowner’s tax exemption on that property (which involves certifying that you live full-time at the property you own). In our experience, this is one of the worst choices a tenant can make. If the primary occupant of a rent-controlled apartment is receiving a tax break on a different property meant for homeowners, it can be hard to convince a judge that the tenant is not playing fast and loose with the rules.
Even if a tenant has good explanations for why they changed their mailing address, moved items elsewhere, or registered a car elsewhere, these are hurdles that a tenant will have to overcome.
By knowing what the Rent Board will be looking at to determine a tenant's principal place of residence live, tenants can (hopefully) avoid finding themselves having to fight to maintain their rent control.
Recovered on behalf of a group of 30 tenants living in an SRO in San Francisco who were living with horrendous conditions in their rent controlled apartments, including rodents, bedbugs, mold, water leaks and harassment.Read More
Recovered on behalf of three families living in a building in San Francisco’s SOMA neighborhood who were forced to live with substandard conditions for years as a result of their landlord’s negligence, including issues with lack of heat, lack of hot water and cockroach/rat infestations.Read More
Recovered on behalf of a couple living in a rent-controlled home in the outer Sunset neighborhood. Our clients were forced to vacate after the landlord served them with an Owner Move-In Eviction Notice. After the landlords failed to move into the property, our clients filed suit for wrongful eviction.Read More
Recovered on behalf of a San Francisco tenant in Russian Hill. Tenant was forced to vacate her illegal apartment in retaliation for reporting unlawful rent increases to the San Francisco Rent Board.Read More
Recovered for a single long-term tenant in San Francisco. Our client was forced to move out of his apartment as a result of extreme landlord harassment.Read More
Recovered on behalf of three long-term tenants in San Francisco’s Castro neighborhood who were constructively evicted due to noise and nuisance conditions created by their downstairs neighbors, which the owner refused to address.Read More
Recovered on behalf of elderly, disabled tenant who was forced to move out of her rent-controlled San Francisco apartment of 50 years after landlord/owner failed to resolve numerous building code violations that remained outstanding for over a decade.Read More
Recovered on behalf of seven tenants living in a makeshift boarding house in East Palo Alto.Read More
Recovered on behalf of two former San Francisco tenants who were evicted via an Owner Move-In Eviction and owner failed to occupy the unit as her primary place of residence.Read More
Recovered on behalf of an elderly long-term tenant who was forced to vacate her long San Francisco apartment as a result of her landlord’s refusal to address longstanding defective conditions, including lack of heat, mold, rodent infestations, and defective plumbing. Read More
Recovered on behalf of a San Francisco tenant who was forced to vacate his home as a result of ongoing, disruptive construction and the owners’ refusal to provide him with alternative housing. Read More
Recovered on behalf of a San Francisco family that was constructively evicted from their home in the Richmond District as a result of unlawful rent increases, defective conditions and tenant harassment.Read More
Recovered on behalf of a tenant living in an illegal “in-law” unit. In this case, a new owner purchased the building and then demolished our client’s unit without permits while she was displaced for seismic retrofitting.Read More
Recovered on behalf of two long term San Francisco tenants who were fraudulently evicted from their home of over twenty years under the pretext of an owner move-in eviction.Read More
Recovered for tenant who was injured when their stairway railing collapsed at the tenant’s Mission District apartment building.Read More
Recovered in action for a group of tenants forced to vacate their San Francisco apartment house due to severe habitability defects including mold and water leaks.Read More
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For more information or to discuss your legal situation, call us today at (415) 649-6203 for a phone consultation or submit an inquiry below. Please note our firm can only assist tenants residing in San Francisco, Oakland & Berkeley.