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In California, a tenant (or roommate) who pays another tenant to live in a room or rental unit is a subtenant. The person the subtenant pays rent to is the master tenant. The master tenant rents the residence from their landlord under a written or oral contract and collects the rent from the subtenant.

Roommates/housemates who have equal rights in their relationship with the landlord are co-tenants. Co-tenants have a direct relationship with the landlord and pay rent directly to the landlord.

Is the lease in writing?
Subletting is not automatically illegal; it is only impermissible if there is a lease prohibiting it. In San Francisco, even if the lease expressly prohibits subletting or assignment, and/or places limits on how many people can occupy the property (most rental agreements, including SPOSFI's, do), the Rent Ordinance generally allows tenants to replace departing roommates or to increase the number of occupants living in the unit.

However, when there is a written lease agreement prohibiting subletting, San Francisco tenants and landlords need to follow procedures and a specific timeline to get the landlord's approval for the new occupant(s).

Steps for tenants
Tenants with leases that prohibit subletting must seek landlord consent by:

• Making a written request and waiting up to 14 days after delivery for the landlord to respond.
• After the 14th day, if no response is provided or the request is unreasonably denied, it is deemed approved.
• Within five days of the tenant's request, a landlord may require a tenant to submit an application for the subtenant. Tenants must provide the appropriate information within five days. Failure to do so can be a basis for landlord denial of subtenancy.

Steps for landlords
Landlords may reasonably deny the subtenant when:

• Subtenant intentionally misrepresents significant facts, interfering with a background check.
• Subtenant presents a direct threat to the health, safety, or security of other residents or property; or
• The total number of occupants in the unit would exceed the lesser of (i) or (ii):
  (i) Two persons in a studio unit, three in a one-bedroom unit, four in a two-bedroom unit, six in a three-bedroom unit, or eight in a four-bedroom unit; or
  (ii) The maximum number permitted in the unit under state law and/or other local codes.

Creditworthiness is not a basis for denial, since the subtenant will not be paying rent to the landlord.

Is the landlord being unreasonable?
If the landlord denies the tenant's request for a subtenant, the tenant may file a petition with the San Francisco Rent Board for a rent reduction, or may use the denial as a defense against an eviction for breach of lease if the new occupant moves in.

Unapproved occupant
If a tenant has moved in a new occupant in violation of the lease, the landlord may serve the tenant with a written Notice of Violation and allow 10 days for the tenant to cure the violation before proceeding with an eviction. To cure the violation, the tenant can either a) begin the proper 14-day timeline procedure, or b) remove the unapproved occupant.

Rent increase with additional occupant(s)?
Rent increases are not allowed solely for adding an occupant. However, the landlord may petition to raise the rent if it can be shown that the new occupant has resulted in increased operating expenses. The landlord may also be entitled to increase the rent to market rate when all original tenants have vacated the unit, pursuant to the Costa-Hawkins Rental Housing Act.

Master tenant leaves; what next?
If the master tenant vacates, and assuming the remaining subtenant or subtenants have no landlord contact, subtenant rights are dependent upon the master tenant's rights.

If the remaining occupants are unapproved subtenants, the landlord may potentially evict unapproved subtenants under Rent Ordinance §37.9(a)(7), which articulates a just cause allowing a landlord to evict holdover subtenants if "the tenant holding at the end of the term of the oral or written agreement is a subtenant not approved by the landlord."

A landlord hoping to regain possession or increase the rent to market rate should NEVER accept or demand rental payments directly from a subtenant. The relationship is between the master tenant and the subtenant, not the landlord. Acceptance of funds from a subtenant may create a tenancy relationship despite the absence of a lease.

Ask for help
Consider the long-term costs of tenant/subtenant eviction and the proper legal grounds for pursuing eviction. What are the procedures and notice requirements for eviction? Could there be a buyout option?

The law relating to subletting in San Francisco is complex. Landlords navigating San Francisco rentals should seek the guidance of qualified legal counsel.