What if My Apartment is Illegal?

Advice for tenants in illegal units

One issue that we see come up frequently involves “illegal” units. Many tenants have no idea that they live in an illegal unit or what that might mean. Whether your apartment is illegal or not can be significant and impact your tenancy and rights.

Illegal units are residential dwelling units that lack a “certificate of final completion and occupancy.” Certificates of occupancy are issued by the San Francisco Department of Building Inspection. If an apartment has a certificate of occupancy that signifies the City knows it exists, has approved it for residential use, and that it was built with the necessary permits.

The most common type of illegal unit is the “in-law” or mother-in-law apartment. These are typically studio or one-bedroom apartments. They often have a separate entrance and an address. Usually the address has a letter like “A” or a weird number like “1/2” identifying it.  Illegal units can also be industrial or commercial space that has been converted to residential use without city approval.

A space that satisfies City code requirements can still be illegal if the owner failed to obtain the necessary permits. Generally, these units are not up to code and many have substantial problems that can pose health and safety dangers for tenants.

How do I know if my apartment is illegal?  

Just because your apartment has a mailbox, a separate entrance and its own address doesn’t mean it is legal. If you live in an in-law unit the chances are it’s illegal. If you want to know for sure your best bet is to look online at the San Francisco Planning Department’s “Property Information Map.” Simply type in your address and look at the number of units listed for the address. Be aware this information may not be 100% accurate. For more information consider taking a trip to the Planning Department or Department of Building Inspection to look up the address.

Why Should I care if My Apartment is Legal or Not?

It may not matter in your situation but the old adage that knowledge is power holds true here. Whether your apartment is legal or not could be a matter of personal safety.

If your apartment is illegal there is no guarantee that it is safe to live in. Many lack sufficient fire proofing,  two fire exits, or a secure/stable electrical system. You may be acting under a false assumption that you are living in a safe environment. Even if you don’t intend to move, knowing about potential risks can help you plan in the event of a fire or other hazard.

Additionally, the status of your apartment can impact your ability to stay in your home long-term.  It is illegal for a landlord to rent out or charge rent to a tenant in an illegal unit. If you contact the City to complain about a problem in the apartment (lack of heat, mold, mice, etc.), the City will send an inspector out to take a look. If they determine the unit is illegal this could start a domino effect that could put your tenancy at risk.

This also makes tenants in these units a target for eviction or buyouts – particularly where a landlord is considering selling the building. Generally speaking buyers don’t want to inherit unnecessary risk. A tenant in an illegal unit represents such a risk.

Can I Sue My Landlord for Renting Me an Illegal Apartment?

Potentially, yes. Because landlords are barred from renting out illegal units, you may have legal claims against your landlord. Your landlord could be liable for presenting the unit as a legal dwelling unit when they knew, or should have known it was illegal. These units often have other problems like lack of heat, insufficient insulation or protections from water intrusion, which can give rise to other legal claims. In fact, you may have a right to a return of your rent going back four years. Every situation varies so be sure to discuss your case with a tenant attorney to find out what your options are.

Can My Landlord Just Demolish my Apartment?

Probably not. In the past San Francisco landlords could bring a demolition eviction in these situations. However, San Francisco has made it very difficult for landlords to demolish these units. Current city policy is to compel landlords to bring these units up to code. However, this isn’t always feasible. If your landlord attempts or is able to obtain a permit to demolish the unit, you may still have avenues to protect your home. Again, this is something we encourage you to discuss with a lawyer.

Illegal units raise numerous legal and safety issues. Being aware of the status of your apartment is crucial to protecting yourself and your legal rights. If you have questions about the legality of your home or think you are living in an unsafe unit, contact us today to see how we can help.