Fact Sheet 6 - Tenant Petitions
Overview of Tenant Petitions
A tenant may assert several types of claims against his or her landlord by filing a Tenant Petition at the Rent Board. There is no charge for filing the petition. In many cases, the petitions are resolved after a mediation session, although sometimes an arbitration hearing before an Administrative Law Judge is required.
The tenant may combine more than one type of claim in a Tenant Petition. The types of claims that may be included in the petition are:
- Substantial Decrease in Housing Services;
- Failure to Repair and Maintain;
- Unlawful Rent Increase or Request for Determination of Lawful Rent;
- Improper Utility Passthrough;
- Improper Water Revenue Bond Passthrough;
- Improper General Obligation Bond Measure Passthrough;
- Failure to Discontinue a Capital Improvement Passthrough;
- Section 6.15C(3) Proportional Rent Claim by a Subtenant Against a Master Tenant;
- Unlawful Initial Rent Claim by a Subtenant; and
- Non-compliance with Uniform Hotel Visitor Policy or Approved Supplemental Visitor Policy.
The following types of claims may also be filed at the Rent Board, although they are not usually scheduled for a hearing or mediation:
- Tenant Summary Petition Based on Receipt of Invalid Notice of Rent Increase
- Report of Alleged Wrongful Eviction
The Rent Board cannot decide matters that are not covered by the Rent Ordinance. For example, we do not adjudicate issues that are not related to the amount of rent charged, such as harassment, discrimination and retaliation. We also do not adjudicate issues involving security deposits. Such matters must be decided in court or another forum.
Substantial Decrease in Housing Services Petitions
A tenant may petition the Rent Board for a reduction in base rent when the landlord has substantially decreased a housing service without reducing the tenant's base rent. This includes a housing service provided at the commencement of the tenancy; a housing service reasonably expected under the circumstances; a housing service verifiably promised by the landlord prior to commencement of the tenancy but never provided; and/or a housing service added after commencement of the tenancy where additional rent was paid when it was provided.
A "Housing Service" is any service or amenity provided by the landlord connected with the use or occupancy of a rental unit including, but not limited to: repairs; replacement; maintenance; painting; light; heat; water; elevator service; laundry facilities and privileges; janitor service; refuse removal; furnishings; telephone; parking; rights permitted the tenant by agreement, including the right to have a specific number of occupants, whether express or implied, and whether or not the agreement prohibits subletting and/or assignment; and any other benefits, privileges or facilities. (Note that a landlord must have a "just cause" reason to remove or sever the following housing services from a tenancy: garage facilities, parking facilities, driveways, storage spaces, laundry rooms, decks, patios, or gardens on the same lot, or kitchen facilities or lobbies in single room occupancy (SRO) hotels.)
In order for a rent reduction to be granted, the tenant must prove that the decrease in the service was substantial, and that the landlord had notice of the problem or condition but failed to restore the housing service within a reasonable time after receiving notice. Notice can be actual or constructive. The fact that a landlord attempted to repair a problem without success is not a defense to a decrease in services petition.
The rent reduction is limited to the amount requested in the petition, and the tenant must be prepared to justify or explain the amount of the requested rent reduction. Evidence pertaining to the value of the housing service should be provided, including a description of how the problem or decrease in service impacts the tenant and how it affects the value of the tenancy.
If the tenant proves a substantial decrease in housing services, a rent reduction will be granted retroactive to the date the landlord had notice of the decreased housing service. Rent reductions are limited to the one-year period before the petition is filed, unless the tenant proves that the landlord had long-term notice regarding the problem, or it is shown that extraordinary circumstances exist. If the housing service is not restored by the time the decision is issued, the rent reduction will remain in effect until the landlord restores the housing service and gives the tenant proper written notice to increase the rent by the amount of the rent reduction. The Rent Board has no authority to compel the landlord to restore the service, but can only order a rent reduction for the loss of the housing service.
Failure to Repair and Maintain Petitions
A tenant may petition for the deferral of any rent increase (except a capital improvement passthrough, utility passthrough or a bond measure passthrough) if the landlord has failed to perform requested repairs, replacement or maintenance as required by state and/or local law. If the petition is granted, the proposed rent increase will be deferred or postponed until the requested repairs are made. The tenant's anniversary date is not affected by the deferral of the increase. The petition must be filed no later than 60 days following the tenant's receipt of the rent increase notice.
In order to have a rent increase deferred due to a failure to repair, a tenant must prove that the landlord knew that the work needed to be done and was required by law. Tenants should notify their landlord of needed repairs in writing, if possible, or follow oral notification with a letter confirming the request. Additionally, the tenant should contact the Department of Building Inspection or other appropriate city agency to request an inspection for code violations. The "Notice of Violation," if one is issued, provides proof that there is a violation of law.
Tenants should pay the disputed rent increase until the Administrative Law Judge's decision is issued. If the Administrative Law Judge decides that the landlord is not entitled to the increase because of the repair problems, the landlord will be ordered to refund the amount of the rent increase paid since the effective date. The Administrative Law Judge's decision will itemize the repairs that the landlord needs to make in order to reinstate the rent increase. The petition will not be granted if the repairs were completed before the effective date of the rent increase. Please note that the Rent Board does not have authority to order the landlord to perform the repairs; only a city inspector can do that.
Although there are additional remedies under state law for a landlord's failure to repair (such as rent withholding or "repair and deduct"), tenants should be aware that these remedies pose risks and can lead to an eviction action. A tenant should obtain legal advice before deciding to withhold rent under these state law provisions.
Depending on the nature of the code violation, the tenant may combine a Failure to Repair and Maintain claim with a claim based on Decreased Housing Services, which may result in a base rent reduction as well as deferral of a proposed rent increase. The tenant can also raise the landlord's failure to repair and maintain as a defense to a landlord's rent increase petition based on increased operating and maintenance expenses or comparable rents.
Helpful Hints for Tenants Planning to File a Decrease in
Housing Services and/or Failure to Repair and Maintain Petition
Complete the petition form(s) fully and accurately. Processing of tenant petitions is often delayed because incomplete information is provided on the petition and/or supporting documentation is not submitted in a timely manner. You can help speed up the process considerably by making sure to address all of the points listed here.
- Are there sufficient mailing addresses and telephone numbers for the tenant, the landlord and/or the manager?
- Is the petition signed and dated?
- If there are any roommates who wish to be included in the action, each roommate must either sign the tenant's petition and be listed as a co-petitioner or file a separate petition and request consolidation with the tenant's petition.
- All documentation supporting the petition should be relevant to the stated claims, clearly organized and labeled to assist the Rent Board staff in reviewing, processing, hearing and deciding your case.
- Have copies-NOT the originals-of any supporting documents and/or photographs been provided? Originals should be brought to the hearing for inspection, but should not be given to the Rent Board for the file. (The Rent Board cannot remove evidence from the file and return it to you.)
- In addition to the Tenant Petition for Arbitration form, is the correct form (i.e., Decrease in Services Statement and/or Failure to Repair Statement) completely filled out and attached to the petition?
For Petitions based on Decreased Housing Services Claims:
- Is each decreased housing service listed clearly and separately?
- Is the monthly value of the housing service, expressed in dollars, provided for each separate claim? The Rent Board staff cannot do this for you.
- Is supporting documentation for each decreased housing service attached to the petition? Proof could be a Notice of Violation from the Department of Building Inspection, copies of letters to the landlord, photographs, etc.
- For each separate claim, are dates provided which indicate when the housing service was decreased or not provided and when the service was restored, if it was restored?
- Note: No rent reductions will be granted for more than one year before the date the petition was filed unless the tenant can prove that the landlord had long-term notice of the decreased housing service or it is shown that extraordinary circumstances exist. Notice may be actual or constructive.
For Petitions based on the Landlord's Failure to Repair and Maintain:
- Is the petition being filed within 60 days of the tenant receiving a rent increase notice? If it has been more than 60 days, the petition cannot be granted.
- Is the rent increase notice included with the petition?
- Is a Notice of Violation from the Department of Building Inspection, Department of Public Health or a similar agency included with the petition? If not, is there other proof that the landlord's failure to repair or maintain is a violation of state or local law?
- When and how was the landlord notified of the repair or maintenance problem(s)? Provide copies of letters to the landlord, photographs, etc. with the petition.
- NOTE: A successful failure to repair claim can ONLY prevent the proposed rent increase from taking effect until repairs are made -- it does not decrease the rent.
After the Petition is filed, a mediation session is generally scheduled.
- Mediation sessions are generally scheduled within 30-60 days after the petition is filed.
- Notice of the mediation session is mailed to all parties at least 10 days before the mediation. Mediation sessions are scheduled Monday-Friday at 9:00 AM and 1:30 PM.
- If the petition is not resolved at the mediation session, an arbitration hearing will be scheduled within about 45 days. Notice of the arbitration hearing is mailed to all parties at least 10 days before the hearing. Hearings are scheduled Monday-Friday at 9:00 AM, 11:00 AM and 2:00 PM.
- Postponement of the mediation session or hearing may be granted for good cause at the written request of the landlord or the tenant. Mere inconvenience or difficulty in appearing does not constitute good cause.
Unlawful Rent Increase Petitions and Lawful Rent Determinations
If a tenant disputes a rent increase or wants to know if the current rent being charged is lawful, the tenant may file a petition alleging an unlawful rent increase and/or requesting a determination of the lawful rent. There is no time limit for filing such a petition.
In order to determine whether the rent is lawful, the Administrative Law Judge will review the entire rent history going back to April 1, 1981 or to the beginning of the tenancy, whichever is later. Where the petitioning tenant moved into an existing tenancy, the entire rent history of the existing tenancy will be reviewed.
A tenant petition alleging an unlawful rent increase will be scheduled for a hearing before an Administrative Law Judge. The tenant should provide evidence of the amount and effective date of each rent increase that has been imposed, including copies of all available leases, rent increase notices, rent receipts, canceled checks or other proof of payment.
Landlords may defend the petition by presenting evidence that all rent increases were proper or that any excessive rent increases were not actually imposed or paid. The fact that a tenant agreed to pay an unlawful rent increase is not a defense, because such agreements are void as against public policy, since tenants are not allowed to waive their rights under the Rent Ordinance.
The Rent Board can only adjust excessive rent increases that were imposed on or after April 1, 1982. The Ordinance also limits the repayment of rent overcharges due to null and void increases to the three-year period preceding the filing of the petition. However, the Administrative Law Judge will readjust the tenant's base rent to the lawful amount based on the entire rent history.
Tenant Petitions for Improper Utility Passthrough and
Hardship Appeals of Approved Utility Passthrough
A tenant may file a petition at the Rent Board to challenge the imposition of a utility passthrough if the landlord has increased the tenant's rent based on an increase in gas and electric costs but has failed to file a petition with the Rent Board for approval of the utility passthrough. The landlord must first file a petition for approval of a utility passthrough before giving the tenant notice of a rent increase for the utility passthrough. A tenant's petition challenging an unapproved utility passthrough must be filed within one year of the effective date of the passthrough.
If the landlord has filed a petition for approval of the utility passthrough, the Rent Board will mail a copy of the petition to the tenant shortly after it is filed. The tenant will be given the opportunity to file written objections to the petition. The petition will be reviewed by an Administrative Law Judge and decided without a hearing unless the Administrative Law Judge determines that a hearing is required. If the petition is approved without a hearing, the landlord and tenant will receive a written decision in the mail approving the utility passthrough. If a hearing is required, the parties will receive written notice of the hearing date and time. The tenant may raise objections to the utility passthrough at the hearing.
A utility passthrough shall remain in effect for no more than 12 months. If the utility passthrough is not discontinued after 12 months, the tenant can file a petition at the Rent Board alleging an improper utility passthrough and seeking a refund of overpayments. There is no time limit for filing such a petition.
If payment of an approved utility passthrough causes a financial hardship for the tenant, the tenant may file an appeal to request partial or total relief from payment of the passthrough. Appeals based on financial hardship must be filed within 15 days after the decision approving the utility passthrough is mailed to the tenant. The tenant must use an Appeal form and a Hardship Application form provided by the Rent Board. If the appeal is timely filed, the tenant does not have to pay the utility passthrough while the appeal is pending. However, if the appeal is denied, the tenant will have to pay the approved utility passthrough amount owing since the effective date of the rent increase notice.
Tenant Challenge of Improper Water Revenue Bond Passthrough
A landlord who pays for water used by the tenants may pass through to the tenants 50% of certain water bill charges resulting from the issuance of Water System Improvement Revenue Bonds. The method for calculating a Water Revenue Bond Passthrough is specified in the Rules and Regulations. Landlords are required to use a worksheet provided by the Rent Board to calculate the amount of the passthrough.
In order to impose the passthrough, the landlord must give the tenant a written notice of rent increase as well as a completed Water Revenue Bond Passthrough worksheet. The landlord is not required to file a petition to seek approval of a Water Revenue Bond Passthrough. However, if a tenant believes that the passthrough is improper, the tenant may file a petition to challenge the passthrough within one year of its effective date. A Water Revenue Bond Passthrough may be improper for one or more of the following reasons:
- The landlord has not properly calculated the passthrough;
- The passthrough is calculated using an incorrect unit count;
- The landlord failed to provide a clear written explanation of the charges and the calculation of the passthrough;
- The tenant's unit is not in compliance with applicable laws requiring water conservation devices;
- The tenant requested a copy of the applicable water bills and the landlord has not provided them;
- The tenancy began during or after the billing periods included in the passthrough calculation;
- The landlord failed to discontinue the passthrough after it was fully paid.
A tenant may also file a hardship application with the Rent Board requesting relief from payment of all or part of the Water Revenue Bond Passthrough. A hardship application must be filed within one year of the effective date of the Water Revenue Bond Passthrough. Once a hardship application is filed, the tenant need not pay the passthrough until a decision is made by an Administrative Law Judge after a hearing on the tenant's hardship application.
Tenant Challenge of Improper General Obligation Bond Measure Passthrough
A landlord may pass through to tenants 100% of the increase in the landlord's property tax bill resulting from the repayment of general obligation bonds approved by the voters between November 1, 1996 and November 30, 1998. The landlord may pass through to tenants only 50% of the increase due to bonds approved after November 14, 2002.
In order to impose the passthrough, the landlord must give the tenant a written notice of rent increase as well as a completed Bond Measure Passthrough Worksheet. The landlord is not required to file a petition to seek approval of a Bond Measure Passthrough. However, if a tenant believes that the passthrough is improper, the tenant may file a petition for arbitration to challenge the passthrough within one year of its effective date. A Bond Measure Passthrough may be improper for one or more of the following reasons:
- The landlord has not properly calculated the passthrough;
- The passthrough is calculated using an incorrect unit count;
- The passthrough was not imposed on the tenant's anniversary date;
- The tenant was not in residence as of November 1st of the applicable tax year;
- The landlord failed to discontinue the passthrough after 12 months.
Petitions for Failure to Discontinue Capital Improvement Passthrough
In order to pass through capital improvement costs to tenants, the landlord must first file a petition and obtain Rent Board approval of the passthrough. The passthrough is not permanent, and may only be imposed for a limited period of time, which is referred to as "the amortization period." Depending on the type of capital improvement and the size of the building, the amortization period may be 7, 10, 15 or 20 years. The amount of the monthly passthrough and the amortization period will be specified in the Administrative Law Judge's decision on the capital improvement petition.
The passthrough does not become part of the tenant's base rent, and it must be discontinued at the end of the applicable amortization period. If a landlord fails to discontinue a capital improvement passthrough at the appropriate time, the landlord will be liable to the tenant for any overpayments of the passthrough. The tenant may file a petition at the Rent Board to request a refund of the overpayments. There is no time limit for filing such a petition. If the tenant proves that he or she overpaid a capital improvement passthrough, the Administrative Law Judge will issue a written decision ordering the landlord to refund all the overpayments.
Section 6.15c(3) Subtenant Petitions Based on Proportional Rent
Pursuant to Rules and Regulations Section 6.15C(3), a master tenant who shares a rental unit with one or more subtenants cannot charge any subtenant more than a proportional share of the total rent the master tenant pays to the landlord. For tenancies that commenced after May 24, 1998, the master tenant is required to provide each subtenant a written disclosure of the amount of rent the master tenant is obligated to pay the owner, prior to commencement of the subtenancy.
The allowable proportional share of total rent may be calculated based on equal division among occupants, or the square footage shared with and/or occupied exclusively by the subtenant, or any other method that fairly allocates the rent such that the subtenant pays no more to the master tenant than the master tenant pays to the landlord for the subtenant's housing and housing services. In determining the proper base rent, additional housing services (such as furnishings or utilities) provided by the master tenant and/or any special obligations of the master tenant and/or evidence of the relative amenities or value of rooms, may be considered.
If the total rent paid by the master tenant to the landlord increases due to a lawful rent increase or passthrough, the subtenant's share of the rent may be proportionately increased without regard to the subtenant's anniversary date. Similarly, if the total rent owed to the landlord by the master tenant decreases, the subtenant's proportional share of rent should be decreased accordingly.
A subtenant who believes he or she is paying more than a proportional share of the total rent may file a Tenant Petition against the master tenant on that basis. If the subtenant prevails, the Administrative Law Judge will adjust the rent and order the master tenant to refund any rent overpayments.
Unlawful Initial Rent Claims by a Subtenant
When a master tenant subleases the entire rental unit and does not share the rental unit with the subtenant(s), the master tenant may not charge a subtenant more rent upon initial occupancy of the subtenant than that rent which the master tenant is currently paying to the landlord. For tenancies that commenced after May 24, 1998, the master tenant is required to provide each subtenant a written disclosure of the amount of rent the master tenant is obligated to pay the landlord, prior to commencement of the subtenancy. If a subtenant believes that the initial rent paid to the master tenant, either individually or in combination with other subtenants, is more than the master tenant is paying to the landlord, he or she may file a Tenant Petition against the master tenant alleging rent overcharges. If the subtenant prevails, the Administrative Law Judge will adjust the rent and order the master tenant to refund any rent overpayments.
Tenant Summary Petitions Based on Unlawful Rent Increase
Where a tenant contends that a notice of rent increase is unlawful on its face, a tenant may file a Tenant Summary Petition. A Summary Petition must be accompanied by a copy of the landlord's notice of rent increase, a statement as to why the tenant believes the rent increase should not be allowed, and any supporting documentation. Any prior Rent Board decision affecting the tenant's rent should also be included.
The Summary Petition process does not usually require a hearing. Upon receipt of a Summary Petition, a staff person will contact the landlord if the increase is unlawful. In most cases, the landlord then gives the tenant a new notice of rent increase for the proper amount. The effective date in the new notice will set a new "anniversary date" for the tenant, and the tenant cannot be given another annual increase until one year from that date.
In contested cases or where the rent increase is not clearly unlawful, the Rent Board may schedule the Summary Petition for an evidentiary hearing.
Reports of Alleged Wrongful Eviction
If a tenant believes an eviction or attempted eviction is in violation of the Rent Ordinance, the tenant may file a Report of Alleged Wrongful Eviction on a form available from the Rent Board. The Board will then send a notice to the landlord acknowledging receipt of the tenant's report and summarizing the rights and responsibilities of the landlord and tenant regarding the eviction. The Board will also request a written response from the landlord to the tenant's allegation of wrongful eviction.
It should be noted that the filing of a Report of Alleged Wrongful Eviction with the Rent Board does NOT prevent the landlord from pursuing an eviction through the courts. Tenants are strongly advised to obtain legal counsel.
The Rent Board staff will investigate a Report of Alleged Wrongful Eviction to determine if there is evidence of any of the following:
- whether the landlord is evicting more than one tenant at approximately the same time;
- whether the eviction is in retaliation for a dispute arising from a tenant's exercise of his or her rights under the Rent Ordinance;
- whether a dispute over the proper interpretation of the Rent Ordinance is involved;
- whether the eviction was effected by fraud or in bad faith; or
- whether a policy issue of city-wide importance is raised.
If any of these criteria are met and there is evidence of an unlawful eviction, the matter may be scheduled for an investigatory hearing before an Administrative Law Judge. After the hearing, the Administrative Law Judge will prepare a summary of the evidence for the consideration of the Rent Board Commissioners. The Commissioners may decide to hold additional hearings, to commence legal action against the landlord, to make a referral to the District Attorney for criminal prosecution, or to take no further action. If no evidence of an unlawful eviction is found after the investigation of a Report of Alleged Wrongful Eviction, the tenant will be so informed and the case will be closed.