Tobener Ravenscroft

Aging in Place

Few decisions are as important and personal as choosing your home. As we grow older, where we choose to live takes on an even greater level of importance and complexity. As Americans continue to live longer, more seniors are choosing to remain in their homes. According to AARP, ninety percent of seniors want to age in place. This is not surprising. Not only does aging in place allow for independence and closer contact with family and friends, it is also financially prudent. HUD calculates that average monthly payments for in-home care is $928, while nursing homes average $5,243.

Demanding Alterations to a Your Space

Most apartment units in San Francisco are not equipped to handle the changing needs of seniors. Needed changes often include ramps, grab bars, non-slip surfaces, lever-handled doorknobs, and higher and lower electrical outlets and switches.

In California, tenants can require a landlord to allow for alterations to a space and common facilities to accommodate their changing needs. Even though most leases prohibit alterations, a tenant can get around this by requesting a reasonable accommodation for a disability under the Fair Employment and Housing Act. The landlord does not have to pay for the alteration but must allow it. See Auburn

Woods v. FEHA, 121 Cal. App. 4th 1578, 1593 (2004). Under FEHA, a disability is any chronic health issue that, if left untreated, would limit a major life activity, such as working, walking, developing meaningful relationships, or lifting. Gov’t Code § 12926(j, l).

While age is obviously not a disability by itself, some of the physical and mental issues that are sometimes associated with aging are often disabilities under FEHA, for example, arthritis, vision impairments, decreases in flexibility and balance, forgetfulness, and anxiety.

When a tenant with a disability makes a request for an accommodation, the landlord is required to engage in a good faith, “interactive process.” Auburn Woods, 121 Cal. App. 4th at 1598. In other words, a landlord cannot flatly deny a tenant’s request for a reasonable accommodation.

Damages for the refusal of a landlord to provide a disabled tenant a reasonable accommodation include: (1) loss of a rent-controlled unit or long-term lease; (2) emotional distress damages, including a monetary award for the effect on family relationships and the loss of personal integrity, dignity and privacy; and (3) punitive damages of three times actual damages. Gov’t Code §§ 12970(b), 12980(c), 12987(b). In a rent-controlled jurisdiction, where a homeowner is forced to vacate a below market-unit because of the refusal of an owner to provide a reasonable accommodation, a tenant may make a claim for future rent damages under a constructive eviction theory. One court has upheld lost future rent damages for twenty years. Chacon v. Litke, 181 Cal. App. 4th 1234 (2010). This amount would be tripled under FEHA. Civ. Code § 3345(b).

Because the potential damages against the landlord are high and the impact of the alteration negligible, formal requests for reasonable accommodations are often granted.

Adding a Personal Care Attendant

Leases in San Francisco often prohibit the addition of occupants not listed on the lease. However, despite such provisions, the same laws which allow a tenant to request a reasonable accommodation for a disability also allow the addition of a live-in personal care attendant.

Even though a personal care attendant lives on the property, he or she does not have a landlord-tenant relationship with the landlord. Rather, he or she is an employee of the tenant. Because of this relationship, a landlord cannot increase the tenant’s rent or request a higher security deposit. Also, prior to granting a tenant’s request to add a live-in personal care attendant, the landlord cannot require the attendant to complete an application or be named as a party to the rental agreement. However, the landlord is allowed to hold the tenant responsible for the conduct of the personal care attendant, just as they would hold a tenant responsible for the conduct a guest.

Adding a Family Member

Even if a tenant does not qualify as disabled under FEHA’s definition, the tenant may still be able to have someone move into the unit to look after their needs. The most common arrangement is for aging seniors to bring in a family member.

Where a rental agreement does not have a restriction limiting the number of occupants or a prohibition on subletting, a tenant has the right to add additional roommates so long as the total number of occupants does not exceed legal occupancy limits. This applies whether or not the unit is covered by the San Francisco Rent Ordinance. For these types of units, the legal occupancy limits are described in San Francisco Housing Code § 503.

Even if a lease limits the number of occupants or prohibits subletting, a tenant in San Francisco still has a clear right to add an immediate family member. Rent Ordinance § 37.90(a)(2)(B)) An immediate family member means a spouse, domestic partner, grandparent, parent, sibling, child, grandchild, or the spouses of such relatives.

The procedure for adding a relative to a unit is set forth in Rent Board Rules and Regulations § 6.15D. A tenant must provide a fourteen-day notice to add a relative. The landlord cannot deny the addition of the relative based on credit history. If a landlord denies a tenant’s request to add a family member, the tenant may petition the Rent Board for a decrease in the rent.

Finally, it is important to note that when adding a relative to a unit covered by the Rent Ordinance, different occupancy limits apply. Tenants have the right to add such relatives up to a maximum number of occupants of two persons in a studio unit, three people in a one-bedroom unit, six in a three-bedroom unit, and eight in a four-bedroom unit. Rent Ordinance § 37.90(a)(2)(B)(i-ii).

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