In San Francisco, tenant attorneys see with some frequency the situation where a landlord tries to change the terms of a tenancy in the middle of the tenancy. In some cases, a landlord will reach out to a tenant and they will negotiate new terms together. Often, however, the landlord tries to impose unilateral changes without the tenant’s input or consent. This can occur when, for example, a tenant has lived in her apartment for several years and does not plan to move out, but is in a month-to-month tenancy. Notice of these changes can come as quite a shock to the tenant. And the shock is even greater when the landlord tries to evict the tenant for supposedly violating one of these new landlord-imposed terms.
While some of the changes landlords make to their tenants’ leases can be innocuous, other changes are major and can have far-reaching consequences. Changes can include the amount of rent, the day of the month when rent is due, taking away or adding in an attorneys’ fees provision to the rental agreement, restrictions on the number of guests or the length of time a guest can occupy a rental unit, and almost anything else that a landlord can think of. Sometimes these changes are imposed through new house rules that are issued to the tenant, purporting to add and remove provisions from a rental agreement. These new house rules can be so drastic and lengthy that they take up more paper than the original lease.
Is it legal for a landlord to change the terms of tenancy? In short, yes. But the mechanics of it are screwy and contradict how things work in the real world. The law provides the landlord the ability to change the terms of a month-to-month or week-to-week tenancy by service of a notice. While it feels strange that a landlord is allowed to impose these changes in the middle of a tenancy, the law looks at this situation in much the same way as an economist would – by believing in a totally free and fair market and treating month-to-month tenancies as a kind of fiction. For example, if a tenant began renting on the first of the month and is now in a month-to-month tenancy, the law says that her tenancy ends at midnight on the last day of each month. Then, the tenancy begins anew at 12:01 a.m. on the first day of the next month. This is the fiction that the law sets up for month-to-month tenancies. If, in this situation, the landlord gives notice of a change in the tenancy terms during the month and the tenant remains in possession at 12:01 a.m. on the first day of the new month, the law deems the tenant to have accepted the change in the terms of the tenancy imposed by the landlord.
Unfortunately, in the law’s eyes, the tenant always has the option of moving out if she does not like the tenancy changes imposed by the landlord. This is the second fiction that the law sets up for tenants in these types of situations. Most tenants understand that in many cities with tight rental markets, particularly in the San Francisco Bay Area, there is no such thing as a free and fair market. Landlords and tenants simply do not share an equal bargaining position. In reality, of course, the tenant rarely has such an easy decision. Often, the tenant doesn’t have a decision at all. New rents are so high that a tenant has no choice but to accept the landlord’s changes, whatever they are.
Some unscrupulous landlords know that tenants do not have any real choice but to accept their new house rules or whatever other changes they impose on the tenant, so they make changes to the tenancy with an eye toward evicting longer-term tenants for violations of those new unilaterally imposed terms.
But, tenants have protections against abuse. The biggest protection is rent control. In cities like Berkeley, Oakland, and San Francisco, a landlord of a rental unit covered by rent control cannot unilaterally increase a tenant’s rent unless it is allowable by the local rent stabilization board.
Another big protection is afforded to San Francisco residents with rent control by the San Francisco Rent Board’s Rules and Regulations. A landlord who imposes a unilateral change in the terms of tenancy cannot evict a tenant for a violation of those terms unless the change is authorized by law or the tenant consents to the change in writing, and then only after written notice from the landlord to the tenant informing the tenant that she doesn’t have to accept the change in terms of the tenancy. This protection is available in San Francisco to tenants whose units are covered by the San Francisco Rent Ordinance.
In other areas, including in cities and towns across California that do not have local rent control ordinances, tenants are also protected against evictions over breaches of minor tenancy terms. If the landlord imposes a plethora of changes to the tenancy including some that are minor, and even if the tenant consents to those changes in writing, the landlord cannot evict a tenant for violation of only a minor term. To prevail in an eviction based on breach of lease, the landlord has to prove that the term of the tenancy that was violated was a material term of the tenancy. This simply means it must have been a term that was not minor or incidental.
While landlords sometimes try to unilaterally change the terms of tenancy in the middle of the game, tenants have protections and do not always have to just accept what the landlord imposes.