When renters do not maintain the unit as their principal place of residence
One of the consequences of living in a free society is that people are free to move as they please and this has always been an issue for landlords who have had to keep track of who is living in their rental units. A pandemic has made this game of musical chairs much worse. When a tenant does not maintain the rental unit as a principal place of residence, what is a landlord to do?
Many rental relationships have become blurred.
The master tenant leaves to seek greener pastures, maybe to escape the high costs of living in the Bay Area and taking advantage of a nomadic lifestyle in which they can work from anywhere. Likewise, roommates fly the coop and new occupants are welcomed into the unit. Families and friends once forced to live in close quarters during shelter-in-place orders have now "unbundled" the household as individuals vacate and find their own abode.
Owners of rental properties may have gone elsewhere and rented out their units but later have been called back to the mothership of their office, or after experiencing work-from-home burnout and Zoom fatigue, decide to return back home that is tenant occupied. In other instances, a family member or friend was given the opportunity to stay in a residence rent-free in order to get back on their feet and by now, they have over warmed their welcome.
All of this coming and going has befuddled landlords and property managers who often do not even know who is living in the rental unit, much less understand the mutual obligations of all parties.
The first question we need to ascertain is whether the occupants are named on the lease.
Typically, unauthorized subletting is a "just cause" reason to evict. Yet we have certain instances when the unit is being used as a pied-à-terre. An affluent tenant essentially uses it as a flop house when they are in San Francisco, but does not use the residence as their "usual place of return." The unit is not occupied by anyone else - it just remains dormant.
Land is something we cannot make more of and so lawmakers have frowned upon owners who do not use their property for the greater public good.
Read our earlier article: Laws and public policy surrounding rental properties look like a modern-day Robin Hood →
Yet the cloth cuts both ways - if landlords cannot let a property sit idle, neither can tenants.
While there is an antipathy for unused living space normally that goes against the landlord - a vacancy tax, for example - what happens when the tenant is squandering the space by not living it?
In San Francisco, landlords have the ability to turn the tides by claiming a tenant is not living in the unit and it is the tenant who is not utilizing valuable housing stock.
Through a 1.21 Petition, the property owner can claim that the tenant is not using the rental unit as their principal place of residence. They do not call the place their home.
If the tenant is not living in the rental unit and perhaps hopscotching around the country, the landlord may be entitled to raise the rent if it can be proven that the tenant does not regularly lay their head in the rental unit. "Usual place of return" is the standard.
It is the burden of the landlord, however, to prove that the tenter is an absentee renter and only sporadically returns to the unit.
Get the full scoop on the Rent Board's website ⇾
A word about owner move-in evictions
When a landlord endeavors to recover possession of their rental unit for their own use or that of a close relative, Bornstein Law can effectuate an owner move-in/relative move-in eviction (OMI/RMI), but there are several procedural hurdles to overcome.
What we are seeing is that property owners who were once transplanted from the Bay Area are looking to do an about-face and move back into the property they own. If it has already been rented out, it is not an easy transition for the owner to just show up and reclaim their rights to the premises.
Recently, we encountered an owner that decided to move back home after renting her property to two tenants. The occupants were nice enough to let the owner stay on the couch for a week. The owner then got a scathing letter from the tenant's attorney that the owner's presence was not welcome and was encroaching on the tenant's living space. Bottom line: If owners desire to move back, proper protocols must be followed.
Parting thoughts
Our office is now sorting out the many transient rental relationships formed during the pandemic. There have been twisted knots we have been tasked with untangling. If there are any quandaries, Bornstein Law is well versed in this area and can resolve them so that landlords and property managers can regain control.