Berkeley Rent Control
Berkeley Tenant Law Articles
13 Jul 2017
What units are covered by the Berkeley Rent Control? The Berkeley Rent Stabilization and Eviction for Good Cause Ordinance has two separate protections that are best thought of as distinct: rent increase limitations and just cause eviction protection. Some units in the City of Berkeley have eviction protection, but do not have limitations on rent increases. Other units have both the eviction protection and the rent increase protection. And, a few units have neither protection. Buildings with two or more…
Berkeley Rent Control
What units are covered by the Berkeley Rent Control?
The Berkeley Rent Stabilization and Eviction for Good Cause Ordinance has two separate protections that are best thought of as distinct: rent increase limitations and just cause eviction protection.
Some units in the City of Berkeley have eviction protection, but do not have limitations on rent increases. Other units have both the eviction protection and the rent increase protection. And, a few units have neither protection.
Buildings with two or more units built before June 30, 1980 have both eviction protection and rent increase limitations.
Buildings with two or more units built after June 30, 1980 have eviction protection only but not rent increase limitations.
Single family homes and condos first rented after January 1, 1996 have eviction protection only but not rent increase limitations.
Single family homes and condos where the original tenant has occupied since before January 1, 1996 have both eviction protection and rent increase limitations.
Berkeley Housing Authority and Section 8 voucher tenants have eviction protection only but not rent increase limitations.
Rental units in a two-unit property do not have eviction protection or rent increase limitations, where one unit was, on December 31, 1979, and one unit currently still is the principal residence of an owner of at least 50 percent of the building.
Rental units do not have eviction protection or rent increase limitations, where the tenant shares kitchen or bath facilities with an owner of record who holds at least a 50 percent interest and maintains his or her principal residence in the building.
How much can a landlord increase the rent per year in Berkeley?
The annual percent increase for a rent-controlled unit in Berkeley is sixty-five percent of the annual percentage increase in the CPI. The city of Berkeley Rent Stabilization Board’s has a calculator on their website.
What are the eviction protections in Berkeley?
For units with eviction protection, a landlord in Berkeley can only evict for one of 12 reasons, also known as just causes, which are:
Non-payment of rent;
Breach of lease;
Willful, substantial damage to the rental unit that tenant refuses to repair;
Refusal to sign a new lease that is substantially identical to the expired one;
Disturbing the peace and quiet of other occupants;
Refusal to allow landlord access to the rental unit during normal business hours to show, inspect or make repairs;
To bring a unit in compliance with the Housing Code by making substantial repairs that cannot be made while the tenant lives there;
Demolition of a unit;
Owner move-in by an owner with at least a 50 percent recorded interest in the property, or such an owner’s spouse, parent, or child, wishes to occupy the rental unit as their principal residence and there is or was, for 90 days before the tenant was given notice to vacate, no vacant comparable unit available on any property owned by the landlord in Berkeley;
An owner or lessor wishes to move back into a rented or sub-leased unit as permitted in the rental agreement with the current tenant(s);
Refusal to vacate temporary housing offered by the landlord after repairs to the tenant’s prior unit have been completed; and
A tenant engages in unlawful activity on the premises.
In addition to these twelve enumerated just causes, a landlord may also take a rental unit off the rental market completely and evict all of the tenants. This is known as an Ellis Act Eviction.
What are the special protections against an Owner Move-In eviction in Berkeley?
Under the Berkeley Rent Ordinance, there is an absolute prohibition on owner/relative move-ins where either: (1) the tenant has lived on the property for five or more years and the landlord has a 10% or greater ownership interest in five or more residential units in Berkeley, or (2) the tenant is at least sixty years old or disabled, and has lived on the property for five or more years. If all the landlord’s units are limited by the above, an eviction for the owner or relative to move in is only permitted where: the landlord has owned the property for five or more years and is at least sixty years old or disabled, or the landlord’s relative is at least sixty years old or disabled.
A landlord must provide at least sixty days’ notice to recover possession of a rental unit through an Owner or Relative Move-In eviction. Under the law, landlords are restricted from pursuing an Owner or Relative Move-In during the school year where the tenant household has a school-age child. However, a similar provision that was passed in San Francisco has been challenged in court.
What are the special protections against an Ellis Act eviction in Berkeley?
A landlord who evicts a tenant pursuant to the Ellis Act must provide at least one-hundred twenty days’ notice of their intent to recover possession of the property. The notice period is extended to one-year for tenants who have one year of occupancy prior to the landlord’s delivery of their notice of intent to withdraw housing accommodations to the City, and are either sixty-two years old, or disabled within the meaning of the Fair Employment and Housing Act.
Am I entitled to relocation money or moving allowance if I am evicted?
Owner or Relative Move-In and Ellis Act Relocation Payments
If the landlord evicts for an owner or relative move-in or pursuant to the Ellis Act, the landlord must pay $15,000 to any household where at least one occupant has resided in the unit for one year or more. An additional $5,000 payment is required to tenant households that qualify as low-income, or, which include disabled or elderly tenants, minor children, or tenancies beginning prior to January 1, 1999. Relocation assistance is capped at $20,000 per tenant household. Relocation expenses are subject to increase in accordance with the Consumer Price Index (CPI) beginning in 2018.
Temporary Relocation Payments for Repairs of Code Violations
If relocating for 29 consecutive days or less:
Per diem hotel/motel and meal costs:
$120/day for a one-person household
$135/day for a two-person household
$166/day for a three-person household
$166/day + $15/day per household member after the third
Pets that require boarding:
$20/day for a cat
$50/day for a dog
If the relocation lasts for a period of 30 consecutive days or longer:
The landlord must reimburse your relocation expense by providing: (1) a one-time fixed dislocation allowance of $400 to defray incidental relocation expenses; (2) a fixed $300 payment for moving expenses, or you can provide proof of actual moving expenses to get reimbursed for entire moving costs; (3) $200 for storage expenses if you do not have receipts, or reimbursement of actual expenses if you do provide receipts; and (4) payment to cover rent differentials, if any, incurred as a result of the eviction, but only up to the first ninety days of relocation.
Can I sue for wrongful eviction under the Berkeley Rent Ordinance?
A landlord who evicts in bad faith or with dishonest intent is liable under the Berkeley Rent Ordinance for actual damages and attorney fees. Where a trier of fact finds the landlord’s actions be willful, the tenant shall be entitled to damages in the amount of $750 or three times the actual damages sustained, whichever is greater.
Bad faith is presumed where a landlord evicts for owner or relative move-in, and the owner or relative does not move in within three months or does not occupy the unit as a principal residence for at least thirty-six months. A similar presumption applies where a landlord fails to demolish or repair as promised within two months.
Can a Berkeley landlord increase the rent when the last original occupant has moved out?
For subtenants who moved in after January 1, 1996, the landlord may increase the rent one time beyond the maximum allowable annual increase provided that the landlord has not signed a lease with any of the subsequent occupants and the landlord has not accepted rent after receiving written notice from the last original occupant that he or she has moved out or will be moving out permanently. Even though the Berkeley Rent Board takes the position that acceptance of rent creates a new tenancy, a state law called Costa-Hawkins likely pre-empts this, allowing a landlord a one-time rent increase even if the landlord accepted a rent payment from a subsequent occupant. The landlord has six months after receiving written notice that the last original occupant has vacated to increase the rent. Once the landlord has imposed the one-time vacancy increase, all of the tenants residing in the unit become new original occupants.
Do I have to occupy the unit fulltime to have the rent-control limitations in Berkeley?
Only a tenant under the Rent Ordinance who occupies a unit as his or her primary residence remains protected. Rental units that are kept primarily for secondary residential occupancy, such as a pied-a-terre or vacation home, or primarily for non-residential purposes (such as storage, commercial or office use) are not subject to rent control. If a landlord wants to show that a tenant is no longer living in a unit fulltime, the landlord can file a Petition for a Determination of Occupancy Status.
Berkeley Rent Board Regulation 524 defines what it means to be “a tenant in occupancy”.
“(B) Occupancy as a primary residence does not require that the individual be physically present in the unit at all times or continuously, but the unit must be the tenant’s usual place of return. Evidence that a unit is the individual’s “primary residence” includes, but is not limited to, the following elements:
the individual carries on basic living activities at the subject premises for extended periods;
the individual does not maintain another dwelling or, if the individual does maintain another dwelling, the amount of time that the individual spends at each dwelling place;
the subject premises are listed as the individual’s place of residence on any motor vehicle registration, driver’s license, voter registration, or with any other public agency, including Federal, State and local taxing authorities;
utilities are billed to and paid by the individual at the subject premises;
all of the individual’s personal possessions have been moved into the subject premises;
a homeowner’s tax exemption for the individual has not been filed for a different property;
the individual is enrolled as a student or is a member of the faculty at an institution of higher education in the San Francisco Bay Area;
the subject premises are the place the individual normally returns to as his/her home, exclusive of military service, hospitalization, vacation, family emergency, Peace Corps service, academic sabbatical, travel necessitated by employment or education, or other reasonable temporary periods of absence.
A tenant who is enrolled as a student or is a member of the faculty or staff at an accredited institution of higher education in the San Francisco Bay Area may qualify as a tenant in occupancy notwithstanding his or her having another residence to which he or she will ultimately return.
If an individual rents two units in the same building and resides in one of the units as a primary residence, the second unit shall qualify as a tenant in occupancy unit if it is used primarily for residential storage of the personal property of the individual.
How much can I charge subtenants as a master tenant in Berkeley?
A master tenant cannot charge a subtenant more than a proportionate share of the total rent paid to the landlord. See Berkeley Rent Board Regulation 1003(C). Similarly, a master tenant subletting the entire premises may not charge a subtenant more than the total rent owed to the landlord. See Berkeley Rent Board Regulation 1003(B).
Am I allowed to replace roommates in Berkeley?
A landlord cannot unreasonably withhold consent to a one-to-one replacement of a co-tenant or subtenant.
Does a Berkeley landlord have to pay interest on a security deposit?
Yes. The interest accrues as simple interest at the rate equal to the average rates of interest paid on six-month certificates of deposit. You can find a security deposit calculator here.
27 Mar 2016
Berkeley Condominium Conversions Updated March 25, 2016 What is the maximum number of rental units that the City of Berkeley may approve for condominium conversion? For all condominium conversion applications submitted after January 1, 2009, no more than 100 rental units per year may be approved for condominium conversion, community apartments or stock cooperative units. If the number of units approved for conversion in a given year is less than 100, the number for the following year is increased by…
Updated March 25, 2016
What is the maximum number of rental units that the City of Berkeley may approve for condominium conversion?
For all condominium conversion applications submitted after January 1, 2009, no more than 100 rental units per year may be approved for condominium conversion, community apartments or stock cooperative units. If the number of units approved for conversion in a given year is less than 100, the number for the following year is increased by the difference but not to exceed 200.
There are two types of units not included in the 100-unit quota:
Below market rate units, also known as inclusionary units; and
Two, three and four unit properties with owner-occupied units eligible for a mitigation fee cap of 5% or less. A mitigation fee is a payment made by the owner(s) to the City of Berkeley for the right to convert to condominiums. The City of Berkeley collects the mitigation fee and uses it to fund affordable housing projects.
Can the City of Berkeley prevent an owner from selling units at TICs?
No. The Court of Appeal has held that cities cannot restrict TICs in any way.
Can a landlord evict a tenant in Berkeley and then convert to condominiums?
There is a ten-year bar to condominium conversion following an Ellis eviction, an owner move-in eviction, a relative move-in eviction, or a demolition eviction.
There is a five-year bar to condominium conversion following a no-fault eviction, a constructive eviction, a tenant bringing a lawsuit for wrongful eviction or constructive eviction, or a constructive eviction by rent increase of more than 10%.
What special protections do tenants have following a condominium conversion in Berkeley?
No tenant may be evicted for an owner move-in eviction or relative move-in eviction, as long as the unit remains the tenant’s principal place of residence.
If the unit is sold, the tenant must be offered a lifetime lease with rent ceiling protections consistent with the Berkeley Rent Ordinance.
All tenants must be given the exclusive right to purchase their unit. The offer must be held open for one year.
To reduce the mitigation fee, a landlord can agree to limit future rent increases to less than 65% of the increase in the CPI for the Bay Area. This is optional only.
How is the Berkeley affordable housing mitigation fee calculated?
The formula for calculating this fee is as follows:
First determine the annual cost of occupying a unit as a condominium by adding monthly mortgage payments, taxes, homeowners’ association fees, and multiplying the sum by 12.
Calculate the annual rental cost using the monthly rent of the unit at the time of application for conversion and multiplying by 12. If the unit is owner occupied or has not been rented in the last 12 months, the rent of a comparable unit nearby may be used in substitute.
The condominium ownership costs of the unit less the rental costs shall then be divided by the current fixed mortgage rate set by the Federal Housing Administration to determine the fee.
How is the mitigation fee is amended after the sale of a converted unit?
If a converted unit is sold, then the mitigation fee is based on the actual sale price rather than the cost of occupying a unit. If the City deems the sale price to be unreasonably low, the seller must support the price with a credible appraisal performed by a Certified Residential Appraiser. If the appraisal is within 10 percent of the actual sales price, the cost of the appraisal shall be deducted from the total mitigation fee amount owed to the city.