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KIM 2.O AMENDMENTS PROHIBIT SAN FRANCISCO LANDLORDS FROM ENFORCING LEASE PROVISIONS LIMITING OCCUPANTS

Most written leases limit occupancy of the dwelling to identified initial tenants, prohibit increases in population without consent, and prohibit subletting without consent. (See the article on Subletting, Assignment, Costa Hawkins on this site.) Recent amendments to the San Francisco Administrative Code substantially restrict landlords' rights to enforce such provisions. These amendments, sponsored by Supervisor Jane Kim, took effect on November 9, 2015. (This was the second set of amendments sponsored by Supervisor Kim during 2015, hence the nickname "Kim 2.0.")

Kim 2.0 prohibits landlords from enforcing such lease provisions up to certain population limits: two persons in a studio, three persons in a 1-bedroom unit, four persons in a 2-bedroom unit, six persons in a 3-bedroom unit, eight persons in a 4-bedroom unit, or the maximum number of persons permitted under other applicable laws, such as the Housing Code. For example, if a 2-bedroom unit was initially rented to two roommates, the occupants could add another two roommates, despite any lease provisions to the contrary. The landlord may not increase the rent solely because of the added occupants. However, if operating costs increase substantially, the landlord may petition the Rent Board for a special operating and maintenance rent increase under Admin. Code section 37.8. Experience has shown that such special rent increases are difficult to obtain, and it may be challenging to show that an increased cost, for example, water/sewer, is attributable to a population increase.

Despite the foregoing, the tenants must still comply with any lease provisions that require the landlord's consent to any changes in occupancy. Kim 2.0 sets out certain requirements for soliciting such consent. The tenant must request consent in advance in writing. In response, the landlord may require that the proposed new occupant submit an approval application, provided that the landlord responds within five days of the request. The tenant must provide the occupant's application materials within five days, and the landlord has four days more to deny the request (14 days after the tenant's initial approval request) to deny the application. If the landlord does not respond within said 14-day period, the request is deemed approved. The landlord may not deny the request based upon the new occupant's lack of credit, unless the new occupant will become obligated to pay rent to the landlord. Usually, the landlord will not wish to accept rent from the new occupant, who thus will remain a subtenant, in order to protect the landlord's right to raise rent to market whenever the last original tenant permanently vacates the unit.

If the tenant violates the lease by allowing additional occupants without soliciting the landlord's prior written consent, the landlord may lawfully serve notice to cure the breach or quit. However, Kim 2.0 requires that the landlord allow 10 days for the tenant to cure the breach, and the tenant may cure the breach by soliciting the landlord's approval of the new subtenants. These provisions expand upon California Code of Civil Procedure section 1161 - 2 and 1161 - 3 which require only 3 days notice and do not require the landlord to offer an opportunity to cure the breach. It is questionable whether San Francisco's effort to alter 3-day notice procedure is pre-empted under the Code of Civil Procedure. (See, Rental Housing Assn. of Northern Alameda County v. City of Oakland (2009) 171 Cal.App.4th 741.) The pre-emption issue remains to be resolved through the courts.

Additionally, Kim 2.0 requires landlords to attach a new form to all notices to cure or quit or to vacate, which includes specific information in multiple languages (Spanish, Chinese, Tagalog, Vietnamese.) This form is available on the Rent Board's website: http://sfrb.org/forms/no. 1007.