“Subletting may create a different problem for the tenant who sublets. Under some [rent control] ordinances, a tenant who sublets for a fixed term (e.g., a 3-month vacation) may not be able to evict the subtenant at the end of the subletting. This situation would arise if only persons with a specified record interest in the property have a right to evict for owner occupancy. The tenant (the seblessor) would not be able to evict the subtenant to reoccupy the premises, because the seblessor is defined as a "landlord" in the ordinance but not as an "owner." (If there is no other cause to evict, the owner-landlord could not evict the subtenant unless he or she planned to occupy the unit.)
Counsel representing a subtenant should review the local ordinance to ascertain whether it defines a tenant as the "landlord" of the subtenant or if the definition of "tenant" includes any "subtenant." If so, the subtenant would have all the rights of a tenant under the ordinance. At least one ordinance specifically addresses this problem by providing that any landlord (not just an owner) may evict to recover possession for his or her own occupancy "as a principal residence" if the landlord previously occupied the unit and reserved the right to recover possession under the rental agreement. See Berkeley Mun[icipal] C[ode] §§13.76.040, 13.76.130. See also SF Rent Bd Rules & Regs §6.15C(1), discussed in §17.5. (In San Francisco, a well-informed tenant who is subletting will expressly reserve continued exclusive "possession" of some limited space so that the tenant can immediately enter on returning to the premises. Then, if necessary, and with proper compliance with the regulations, the tenant can evict the subtenant without cause.)
It is unclear whether the Berkeley ordinance prohibits a landlord from evicting an unapproved subtenant and recovering possession, especially in light of the Costa-Hawkins Act (see §§17.1A–17.1G). If the landlord may not, then apparently the tenant who sublets may not object to further subletting by the subtenant. Such further subletting might, however, bar the tenant's right to recover possession. Berkeley Mun C §13.76.130 specifies that the right to recover occupancy must be in "an existing rental agreement with the current tenants." (Emphasis added.)
A tenant who takes in a roommate by subletting must be distinguished from one who takes in a roommate with the landlord's consent, i.e., a cotenant. The roommate becomes a tenant of the landlord rather than a subtenant of the original tenant. In this situation, the original tenant has no right to evict the roommate. Only the landlord may evict and must have just cause [as defined by the ordinance] to do so if the roommate is found to be a tenant under the local eviction control ordinance.”