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T & A Drolapas v. SF Rent etc. Bd. A139432/ 2015 DJDAR 7984 1st District

Though he was a child and not party to the original rental agreement signed by his parents, current San Francisco apartment occupant enjoys rent control protections after his parents move elsewhere.

Gerald Borjas was six years old in September 1995, when his parents Javier and Barbara Lara began renting an apartment in San Francisco, pursuant to a written rental agreement with the building’s then owner. Borjas lived in the apartment then, and continued to do so after his parents bought a home in Daly City in 2010 and began using that property as their principal residence. In 2011, the current owner of the building (T&A Drolapas & Sons, LP) served Javier and Barbara with a 60-day notice of a rent increase. Borjas filed a tenant’s petition, alleging that the increase was illegal because he was an “original occupant” of the unit, and thus entitled to statutory rent control protections. An administrative law judge, and subsequently a trial court, sided with Borjas.

Affirmed. The Costa-Hawkins Rental Housing Act was enacted in 1995 to counterbalance the market constraints of local rent control measures, and one of its effects was to allow property owners to establish a higher rental rate for a dwelling when said dwelling changes hands from “original occupants” to new tenants (Cal. Civil Code Section 1954.53(a)). In Mosser Companies v. San Francisco Rent Stablization and Arbitration Board, an appellate panel confronted a set of facts “materially indistinguishable” from those in the present case, and that panel rejected the idea that “original occupants” must be tenants that are “part[ies] to the rental agreement.” That court held that “the son of parents who years before rented a unit in the landlord’s building, and who with landlord’s consent resided with his parents when the rental agreement was entered, is an ‘original occupant’ within the meaning of the statute.” Following this recent precedent, and noting that the landlords’ fears of rent-controlled units passing from generation to generation ad infinitum were overstated, this court affirmed the lower ruling.

Now, Borjas cannot pass the apartment to his own children since they were not the original occupant, but he can keep it in the family for a very long time if he so chooses.