Tenants in Occupancy, But Nobody Home

We all know that San Francisco rent control laws limit rent increases on tenants in occupancy of most residential rental units in our city, and that landlords are allowed to increase rents to market rate when there is no tenant in occupancy. But, what does it mean to be a “tenant in occupancy”? 

What is Tenant in Occupancy?

The San Francisco Rules and Regulations define a “tenant in occupancy” as a person who actually resides in the rental unit as his or her “principal place of residence” and who is entitled by written or oral agreement, subtenancy approved by the landlord, or by sufferance, to occupy the unit to the exclusion of others. 

Occupancy does not require that the tenant be physically present at the unit at all times or continuously. The tenant is allowed reasonable absences so long as the unit is the tenant’s usual place of return. In particular, a tenant may need to be away from the rental unit for a period of time for work or to care of a sick family member. 

Also, a tenant could have more than one “principal place of residence”. For example, a tenant could rent two units in the same building that are reasonably proximate to each other and reside and use both as her “principal place of residence”. 

How to Determine Whether a Tenant is in Occupancy

Some important factors that the San Francisco Rent Board uses to determine whether a tenant is in occupancy include: 

1. whether the unit is listed as the tenant’s place of residence on any motor vehicle registration, driver’s license, voter registration, or with any other public agency, including Federal, State and local taxing authorities;
2. whether utilities are billed to and paid by the tenant at the unit; 
3. whether the tenant keeps personal belongings at the unit or elsewhere; 
4. whether a homeowner’s tax exemption for the tenant has been filed for a different property; 
5. whether the unit is the place the tenant normally returns to as his/her home, exclusive of military service, hospitalization, vacation, family emergency, travel necessitated by employment or education, or other reasonable temporary periods of absence; and/or 
6. whether there is credible testimony from individuals with personal knowledge, or other credible evidence, that the tenant actually occupies the rental unit as his or her principal place of residence. 

It also important to note that there may be other laws, regulations, emergency orders, etc. that will impact a landlord’s ability to increase rents at any given time. 

It can be rough navigating through San Francisco’s rent and eviction laws on your own. Let us help! If you have questions about this topic, rent increases, or any other landlord/tenant issue please contact us. 

-Lan N. Fullerton, Esq.