The Berkeley Rent Board Mailbag

Lease Issues


Q: My lease has an automatic renewal clause that states that at the end of the lease, unless I give 30 days' notice, the lease renews automatically for another year. Is that legal?  (September 2004)

It is legal, but only if the automatic renewal clause is stated in at least 8 point bold face type in the body of the lease, and a recital of the fact that a renewal provision is contained in the body of the agreement appears in at least eight-point boldface type, if the contract is printed, immediately prior to the place where the lessee signs the agreement (CA Civil Code section 1945.5).  


Q: My lease does not allow pets, but my landlord agreed verbally to let me have a dog. Now he's selling the building. Will the new owner have the right to enforce that lease provision or must he allow the dog?  (July 2004)

If the new owner tries to enforce the "no pets" clause, you'll have to prove that the old owner waived that provision by allowing you to have the dog. You should get something in writing from the old owner stating that you were given permission to have a dog. A lease amendment is best, while a letter that memorializes the owner's agreement to let you have a dog is helpful. If this is not possible, you may wish to get written statements from other tenants or neighbors who were aware that the owner knew about your dog. Once you have evidence to prove that the owner allowed the dog, to prevent future conflict, you should let the new owner know, in writing, that despite the "no pets" provision in the written lease, the previous owner waived this clause by allowing you have a dog. However, be aware that if the new owner pursues the matter in court and you don't have a written lease amendment allowing the dog, the judge could decide either way.


Q: I began renting my apartment in January and signed a lease from January through May. In May, my landlord asked me to sign a new lease for June through next May, but I didn't want to commit to a whole year. I did sign a new lease, because he said I'd have to move if I didn't, but I'm wondering if I should have.  (July 2004)

It's a bit difficult to determine, here without all of the information. Generally, a landlord may not ask a tenant to sign something different from what he already has. In your case, you had a lease for 5 months; it may be that he didn't have the right to require more than another 5 months. However, if a landlord's general practice is to sign year leases that span from June to May, and you assumed the previous tenancy (took over for the previous tenant), it may be that he is allowed to continue his normal practice. Assuming that is the case here, now that you have signed a year lease, if you break the lease, the landlord has an obligation to try to re-rent it as soon as possible, but you can be held responsible for rent for the term of the lease until a new tenant is found.


Q: My tenants moved in in June of 2003 and I want them to renew their lease for another year. If I have them sign a new lease for the same rent as the old one, do I have to wait until next June to take the 2005 Annual General Adjustment or will I be able to take it in January when it goes into effect?  (June 2004)

You can draft your lease to allow rent increases authorized by the Rent Stabilization Board during the lease term. Otherwise, you would not be able to increase the rent during the lease period.


Q: I am a landlord and have some questions about tenant turnover. About a year ago I rented an apartment to two people and put them both on the lease. The lease has expired so now they have a month-to-month agreement. Now one is moving out and the remaining tenant has found a replacement. Should I put the new tenant on the old lease, crossing out the name of the one moving out, do I draw up a new month-to-month agreement for them both to sign, or should I make the new person a subtenant of the leaseholder?  (May 2004)

If you put the new tenant on the old lease or draw up a new rental agreement for them both to sign, you are designating both of them as your tenants, as distinct from allowing the new person as a subtenant of the remaining tenant. There are advantages and disadvantages to both options. If both are tenants, you have a direct relationship with both of them and can give notices to either, collect rent from either, and pursue either one or both for defaults in rent should they occur. The disadvantage to making the new person a tenant is that you will not be able to establish a new rent level until both tenants voluntarily move.

If, however, the new occupant becomes a subtenant of the remaining tenant, you have a direct relationship with the (remaining) tenant only: he's the one who is responsible for the rent and with whom you should interact, which could be more limiting than if they were both tenants. The advantage is that if the tenant voluntarily moves out, you could increase the rent on the subtenant, thereby making him a tenant. (It is important to give the subtenant a written notice of the rent increase as soon as you are aware that the tenant will move. If you receive written notice that the tenant has moved and thereafter accept rent from the subtenant at the old rate, you will have locked yourself into the old rate.)


Q: My landlord sent me a letter asking me to renew my lease. I was under the impression that at the end of the lease, my tenancy automatically turned into a month-to-month tenancy. I don't want to sign for another year. Must I? (April 2004)

A lease turns into a month-to-month rental agreement only if the tenant is not asked to renew prior to the expiration of the lease. If your landlord asked you to renew during the lease term, then you must do so or plan to move. You might try to negotiate with him/her for a month-to-month lease or a shorter fixed term. If you cannot reach an agreement and decide to move, you must give 30 days' notice that you are vacating.


Q: My roommate's boyfriend sleeps over almost every night. I wouldn't mind if it were occasional, but it's as if he lives here, watching the television in the living room every night, taking showers every morning, and generally taking up space. Our lease says only 2 people can live here and that guests may stay for up to 2 weeks. I have asked my roommate to limit her boyfriend's visits to weekends but she refuses. Do I have the right to break my lease because my roommate is in violation? (September 2003)

This is a difficult situation, and one that you will probably have to work out with your roommate and her boyfriend. If you both signed the lease, you are both responsible for the lease obligations, even if one of you is in violation of one or more of the lease terms. Your landlord cannot evict your roommate for the lease violation without terminating the lease and also evicting you. Alternatively, if you break the lease, you can still be held responsible for fulfilling its terms, i.e., paying your portion of the rent. If you cannot come to an agreement or live with the current situation, and your lease does not prohibit subletting, you might consider subletting to someone who will not be bothered by the constant presence of your roommate's boyfriend.


Q: I have a tenant who is chronically late with the rent. I recently imposed a $20 late fee on him each month he is late, but he refuses to pay it. What recourse do I have? (September 2003)

You cannot enforce a late fee provision if it was not part of the original rental agreement. However, if you suffer actual damages due to the late payment of rent, e.g., late fee on a mortgage payment, you might be able to recover your damages in Small Claims Court.


Q: I rented a unit to 3 tenants, all of whom are named on the lease. One of them told me that he plans to move out and has found a replacement. Should I put the replacement roommate on the lease, make out a new lease, or treat the new person as a sublessee of the original tenants? (August 2003)

While any of those is a viable option, you should be advised that there are different legal consequences to each course. Once your three original tenants vacate the apartment, the Costa-Hawkins law will allow you to set a new market-rate initial rent on any "lawful sublessees or assignees" who remain in the unit. According to the decision in Cobb v. San Francisco Residential Rent Stabilization & Arbitration Bd. (2002) 98 Cal.App.4th 345, if the replacement roommate has a direct landlord-tenant relationship with the owner, s/he will be considered an original tenant, not a sublessee or assignee. Having the replacement roommate sign either the original or a new lease will create a direct landlord-tenant relationship. This means that the two remaining original tenants and the replacement roommate will have to move before you can set a new initial rent.

However, if you do not name the newest tenant on the lease but treat him/her and any other replacement as a sublessee of the original tenants, you can re-set the rent after the two remaining original tenants move. In this case, the sublessee will not have a direct relationship with you but will be responsible to the master tenants to perform the lease obligations. You should also be advised not to accept rent directly from a replacement roommate, but to have the remaining original tenants pay the entire rent and collect the sublessee's portion. If you accept rent from the sublessee, s/he could argue that s/he has a direct relationship with you and, therefore, should be treated as an original tenant.


Q: I am a tenant and my lease is expiring at the end of June. My landlord has asked me to sign another lease, but I'm not sure if I'll be staying in Berkeley for another year, so I don't want to sign for a full year. Can't I just rent month to month? (June 2003)

If your landlord offers you a new lease to sign prior to the expiration of your old lease, you are obligated to sign a new lease. If you refuse to sign a substantially identical lease for another year, the landlord could choose to terminate your tenancy (B.M.C. § 13.76.13.A.4). You could, of course, try to negotiate with him for a month-to-month agreement or a shorter lease period; however, if he refuses to negotiate, your options are to sign the new agreement or wait to see if he gives you a 30-day written notice to move out.

If your lease had already expired before your landlord offered you a new one, then you would be entitled to continue on a month-to-month basis, but that is not the case here. In the alternative, you might inquire about subletting. Perhaps you'd be willing to sign another lease if you were able to sublet the unit when you leave to defray your costs? If the landlord agreed to allow a sublet or your current lease permits it, then you could try to find a subtenant to recover some, if not all, of your costs. The landlord has a legal obligation to try also to find a replacement tenant if you decide to move and break the lease.


Q: Last August I rented an apartment to two people, but I'm pretty certain there are three people living there. What should I do about this? (June 2003)

You have two choices: you can seek a rent increase or you can ask the new tenant to move. For any tenancies beginning after 1/1/99, such as this one, the occupancy rate for the unit is the number of people authorized under the lease to occupy the unit at the beginning of the tenancy (Board Reg.1270(A)). So, in your case, the occupancy rate is two. If there are more than two people living there, and the unauthorized person is not the parent, child, spouse or domestic partner of one of the tenants, then you may petition the Rent Board for a 10% increase in rent for each additional person (Board Reg. 1270(B)). Your option is to send the tenants a notice that they are in breach of the lease and will face eviction unless they cure the breach. In either case, you must be able to establish through evidence that the person in question actually resides in the unit and is not just a frequent visitor.


Q: I am a tenant and am wondering if subletting is legal in Berkeley? (June 2003)

That depends on what your lease says. If your lease says nothing about subletting, then you may sublet. If your lease absolutely prohibits subletting, then you may not sublet. (However, this prohibition cannot be used to deny you permission to replace a roommate.) If your lease permits subletting with the landlord's consent, then the landlord must allow you to sublet unless he or she has a reasonable objection to the proposed subtenant. The proposed tenant's financial responsibility or prior rental history are examples of reasonable grounds to withhold consent to sublet.


Q: I am in my 8th month of a 12-month lease, and I want to break the lease. I'm paying $1350 for a one-bedroom apartment and I have found a nicer apartment for $1100. What procedure do I follow for breaking the lease? (April 2003)

You should give your landlord 30 days' notice in writing. However, that will not relieve you of the responsibility for paying rent until either the lease term expires or the apartment is re-rented, whichever comes first. If you move out before your lease term ends, the landlord has an obligation to try to mitigate damages by finding a new tenant, but these days there are lots of rentals available, so he may not be able to re-rent the apartment right away for what you're paying. If your lease permits subletting, and you find someone to sublet, then you remain obligated for the rent to your landlord, but the subtenant will be covering some or all of your costs. Even if your lease does not permit subletting, you would be well advised to offer to find a suitable new tenant. If the landlord refuses to cooperate with you, it will be harder for her/him to establish that s/he tried to mitigate damages. If you can't find a replacement and break the lease and rent another place, it is likely that you will be obligated to pay two rents for several months. You might try negotiating with your landlord to reduce the rent, but you signed a contract to pay $1350 so s/he's under no obligation to reduce it. You might be best off waiting until the end of your lease before terminating your tenancy there.


Q: I read recently about a new regulation that says a landlord cannot entice tenants with a month free rent. Is this true? (March 2003)

Not exactly. Regulation 1013(A)(2) states that if a landlord or housing provider offers free or discounted rent during the first term of the tenancy, the rent ceiling will be an average of the rent paid during that term. For example, if a tenant signs a one-year lease, paying $1000 per month but getting the first month free, the rent ceiling will be established not at $1000, but at $916.66, the average of the rent paid that year. What this means, practically, is that throughout the lease term, the tenant will pay $1000 per month, (excepting the first month); then, once the lease term ends, the tenant will pay $916.66 per month. Without this regulation, tenants in their second year would have paid $1000 more rent than in their first year, an average of $83.33 more per month.


Q: I am a landlord and am told that I have to pay interest on my tenants' security deposits. What is the interest rate I'm supposed to pay and when do I pay it? Can I have my tenants deduct it from the rent?  (January 2003)

The Berkeley Rent Ordinance requires that landlords place the deposit in an interest-bearing account at an institution whose accounts are federally insured, and that landlords pay tenants interest at the rate actually earned in that account. Interest earned during a calendar year is to be paid each December, and you can either pay it to the tenants, or notify them what interest was earned and allow them to deduct it from their next rent check. In either case, you must furnish a statement showing the amount of deposit held, the interest rate paid, and the time period for which the interest was earned. But, if by January 10th of the following year, you do not pay or advise a tenant of the amount that may be deducted, the tenant may, with 15 days' written notice, deduct 10 percent of the deposit held from a future rent payment. Also, if you fail to place the deposit in a federally insured account, you are liable to the tenants for 10 percent on their deposit. Remember, a deposit includes not only the portion specifically designated as a security deposit, but also any rent monies paid in advance; thus, if you collect an $800 deposit and $800 for last month's rent, you must pay interest on $1600.


Q: I don't understand why I am paying $350 more in rent than my neighbor, when our apartments are virtually identical.  (November 2002.)

No law states that a landlord must charge comparable rents for comparable apartments, even for tenancies beginning at the same time, except that a landlord may not charge a tenant a higher rent for discriminatory reasons. The discrepancy probably results from the Costa-Hawkins Rental Housing Act, which implemented full vacancy decontrol beginning in 1999, allowing landlords to charge a "market" rent (whatever rent they can get) when a new tenancy begins. For three years before that, rents for new tenancies were tied to the amount the previous tenants paid. Thus, if your tenancy began in or after 1999, and your neighbor moved in before 1999, the disparity in rents is not surprising.

Right now we are experiencing a rare phenomenon: rental rates have actually decreased in the past year. As a result, some tenants who have been in place a year or two are paying more rent than new tenants in comparable apartments. If this is your situation, try re-negotiating your rent with the landlord. If less expensive rentals are available, your landlord might be willing to lower your rent, especially if you've been a good tenant. Having you stay at a lower rent will be preferable to losing you, because she may not find a new tenant for what you're now paying, and she may not want the hassle of finding a new tenant for a lower rent.


Q: A year ago I signed a one-year lease that said my first month's rent was free, and my monthly rent thereafter was $1000. My landlord reported my rent to you as $1000, which I found out is listed in your database as the rent ceiling. But since I paid only $11,000 during the term of my lease, that works out to just $916.67 a month. Should my rent ceiling be $1000 or $916.67?  (November 2002.)

Your rent ceiling is $916.67. For tenancies beginning on or after January 1, 1999, the Rent Stabilization Board considers the rent ceiling the average monthly rent paid during the lease term. This prevents built-in increases in subsequent years; for example, if you paid $11,000 total rent in the first year, and you continued to pay $1000 per month the next year, you would pay $12,000 total during your second year. This would mean your rent increased by $83 per month in the second year, without authorization from the Rent Board. So, at the beginning of the second year, your monthly rent should be $916.67. You should write to the Rent Board, and attach a copy of your lease, asking to have your rent ceiling lowered. We will notify the landlord that the ceiling appears to be $916.67, giving him a chance to dispute the facts. If we revise the ceiling and your landlord still demands $1000 per month after the first year, you may file a petition with our office alleging your landlord is charging illegally high rent.


Q: My roommate and I both signed the lease for our apartment two years ago and are now on a month-to-month rental agreement. My roommate told me he is moving out next week. Doesn't he have to give me and the landlord 30 days' notice? Am I responsible for the entire rent for next month, even though I haven't had a chance to find a replacement to cover his half of the rent?  (November 2002.)

You and your roommate are each independently responsible for the entire rent for the apartment. Your roommate is not required to give the landlord 30 days' notice, although most leases require tenants to inform the landlord of a change in occupants. And, while no statute specifically obligates him to give you notice before moving, the law might imply a reasonable amount of notice, which could be 30 days. You could ask your roommate to pay his share of next month's rent, depending on when a replacement is found, or ask him to forego the return of his half of the security deposit. Your last resort is to sue him in small claims court for the extra rent you pay while looking for a new roommate.


Q: I went to see a one-bedroom apartment that was for rent, and the landlord quoted me $1025 as the rent. But when I met him to sign the lease, he said the rent was $1150. At that point I had already given my prior landlord 30 days' notice of my intent to move, so I signed the lease anyway, even though I felt wronged. Is there any way I can hold him to the original amount we had agreed to verbally?  (September 2002)

It's possible, but you will have the burden of proving the original amount quoted. You will need additional evidence besides your own testimony, such as advertisements listing the apartment for $1025 or witnesses to his quoting the original amount. Your options are to file a petition with the Rent Board for overcharges (in which you will try to prove the rent ceiling is the amount originally quoted) or pursue the matter in small claims court.


Q: I am a master tenant paying $1330 for a 2-bedroom apartment, and my subtenant pays me $665. She recently filed a petition for illegally high rent, claiming that I am charging her more than her fair share, because according to your records, the rent ceiling is $1210. My rent was $1300 when I moved in two years ago. If our landlord is overcharging us, am I liable to my subtenant for her share of the amount the landlord is overcharging? (August 2002)

If the rent ceiling is $1210 and the landlord is receiving $1330, the landlord is ultimately liable for overcharges. Assuming that your subtenant has use of half the apartment, she should be paying no more than $605, and either you or the landlord can be held liable for the $60 per month overcharges. In this situation, you and your subtenant should contact the landlord directly to see if you can resolve the matter. If you can't, you should ask the Rent Board to expand the subtenant's petition to include your own claim against the landlord.

However, if your moving in established a new tenancy and the previous tenant was not evicted pursuant to a 30-day notice, then $1300 is likely a lawful rent. If this is the case, our records show a rent ceiling of $1210 probably because the landlord never reported the new tenancy to us. While his failure to do this doesn't affect the initial rent he could charge you, it does make him ineligible for rent increases, because he has not re-registered the unit. So, he has overcharged you $30 a month since he raised the rent, and you have likewise overcharged your subtenant $15 per month. Again, if you can't work things out informally with your landlord, add to the subtenant's petition by making your own claim against the landlord.


Q:  I moved into my one-bedroom apartment a year ago and have been paying $1300 in rent. I'm about to renew my lease for $1300 again, but I learned that my landlord has just rented the apartment next to mine, which is virtually identical in size and amenities, for $1050. Is there any way I can lower my rent?  (June 2002)

If your lease is up, you stand a good chance of negotiating a lower rent with your landlord. Ask your landlord to lower your rent to $1050, which seems to be the current market rate. If she refuses, and you don't want to stay on at $1300, you can give 30 days' notice and find a cheaper place. If she agrees, you should sign a lease to lock in the lower amount for the term of the lease, because the maximum rent allowed under the Rent Ordinance will remain $1300. Therefore, on a month-to-month agreement, even if the rent is $1050 initially, your landlord could increase the rent to up to $1300 at any time on 30 days' written notice.


Q: My lease says I can have overnight guests for up to 10 days a year. My girlfriend stays over about twice a week, and the manager of my building has been giving me a hard time about that and about other friends who come over. Don't I have a right to have visitors whenever I want?

Not necessarily. A landlord has a right to establish the occupancy level of a unit, and having frequent overnight guests increases the wear and tear on the unit. Therefore, the landlord has the right to restrict the number of overnight stays, and a limit of 10 times a year is probably legal. If your landlord believes that you are violating the lease by exceeding the allowable number of overnight guest stays, he or she can issue a written notice to stop; and if you continue, the landlord may have grounds to evict you.

As for visitors who don't spend the night, the landlord cannot limit the frequency of visits, as long as your visitors do not disturb other tenants.


Q: My lease includes a $20 a day late fee for rent paid after the first of the month. Last month I was 3 days late paying rent, and my landlord says I owe him an additional $60. Is this legal? Isn't there at least some sort of grace period?

A late fee may be charged as long as it does not exceed the reasonable costs the landlord incurs by your tardiness, such as lost interest and the cost of processing a late payment. A $60 late fee for a payment that is three days late is probably excessive. A late charge such as yours that increases daily should be more in the range of, say, $5 a day, with an upper limit of about 4 to 6 percent of the total rent. Sometimes a late charge is a flat fee, usually around $20 to $25, depending on the amount of rent. Grace periods from one to five days are common, but not required, so a landlord may legitimately impose a late fee for rent that is one day past due.
If you think your late charge is excessive, ask the landlord to justify it or lower it. If you choose not to pay all or part of it, he can take you to small claims court and a judge will decide its validity.


Q: What can you tell me about the new California law that affects leases and eviction notices?

The new law, which took effect January 1, 2002, requires leases and rental agreements to disclose the following:

The name, street address and telephone number of the property manager(s).
The name, street address and telephone number of the owner or a person designated to receive notices for the owner.  (Alternative, an owner may post the above information in at least two conspicuous places on the rental property.)
The name, address and telephone number of the person designated to receive rent payments. If this information is not provided, the tenant may pay rent to the person with whom they entered into the rental agreement.
The acceptable form or forms of rent payments (e.g., cash, check, money order).

If the agreement does not specify the form of payment, any form will be considered acceptable. If rent can be paid in person, the agreement must include the days and hours payment will be accepted. If rent can be paid only by mail, then it is presumed paid on the date it is mailed, if the tenant can show proof of mailing. If rent can be deposited at a financial institution, the owner must disclose the account number and name and address of the institution, which must be within five miles of the tenant's residence.

An owner must provide tenants with a copy of their lease or rental agreement within 15 days after the tenant signs it, and, after that, within 15 days of the tenant's request, once each calendar year. If the rental agreement is oral, the owner must, within 15 days of the agreement, furnish the tenant a written statement disclosing the newly required information.

If existing leases or rental agreements do not include the required information, owners may comply by providing a written notice containing the information. Form notices may be downloaded from the Rent Board's website (www.ci.berkeley.ca.us/rent/).

Three-day notices to pay or quit must now specify, in addition to the rental amount due:

The name, address, and telephone number of the person to whom the rent should be paid.
The days and hours rent will be accepted, if it can be personally delivered.
The account number and name and address of the financial institution, if rent can be paid there.


Q: I just signed a lease for an apartment and paid a security deposit and first month's rent, but I have decided not to move in. Can I get my money back? Do I have to give 30 days' notice to break the lease?

Here in Berkeley, where demand for housing is high, you should be able to get most, if not all, of your deposit and rent back. Give the landlord written notice immediately of your intent to break the lease. You are legally bound to pay rent for the full lease term, but the law also requires a landlord to make reasonable efforts to re-rent the apartment (California Civil Code Section 1951.2). The landlord is allowed to retain the amount of rent and deposit necessary to compensate for his losses. So, for instance, if the landlord rents the apartment to someone else without any loss of rent or incurring additional expenses, the landlord must refund the rent and deposit you paid. But if the landlord is unable to re-rent it right away, say, for a month, he may keep your first month's rent but should refund your security deposit. Also, if the landlord reasonably incurred expenses to re-rent the apartment, such as the cost of placing another advertisement, he may deduct that expense from your security deposit.


Q: My tenant signed a one-year lease for an apartment for $1250/month starting last May 1st. On October 6th, he told me he had found a cheaper apartment and gave me a 30-day notice that he was leaving. He moved out November 6th without paying November rent. I wasn't able to rent the apartment for $1250, but think I have a prospective tenant willing to pay $1100, beginning January 1st. Can I charge the former tenant for November and December rent? Can I charge him the $150 I'm losing every month through April? Even if I keep his $2500 security deposit, it doesn't cover my lost rental income.

First, you are unquestionably entitled to prorated rent for the first six days in November ($1250 x 6/30 = $250).  What else you can recover from the former tenant depends on the wording of your lease.

It is likely that your former tenant's breach terminated the lease and Civil Code Section 1951.2 applies. In this situation, you are obligated to "mitigate your damages," that is, keep your rental income losses as low as possible, by re-renting the apartment at market rate as soon as you can. If you can't rent at the former amount, you are entitled to recover damages from the former tenant in the amount of the difference between the rent you were expecting under the original lease and the income you actually obtain by re-renting.

In your case, you would have received rent of $7250 for the last five months and 24 days of the former tenant's lease, but instead you will receive only $4400 from the new tenant for January through April, so you may demand the $2850 difference from the former tenant. You are also entitled to compensation for expenses you incurred resulting from the former tenant's breach, for example, reasonable costs to advertise the apartment for rent. But if you can't reach an agreement with him about what he owes you and the matter ends up in court, your recovery may be reduced if the former tenant proves that you could have re-rented the apartment sooner or for more money.

In the less likely event that your lease specifically provides for the remedy under Civil Code Section 1951.4, which gives you the right to keep the lease in force if the tenant breaches the lease and abandons the property, and your lease allows subletting or assignment (subject to reasonable limitations), then you are entitled to continue to collect rent from the tenant who left. In this case, you are under no obligation to re-rent the apartment, as the lease is still in effect until you terminate it, but you will have to request rent from the former tenant each month until the lease expires. Basically, if the tenant had the right to find a suitable replacement to assume his lease but failed to do so, he is still responsible for rent for the remainder of the lease term. If you do re-rent the apartment, then the former tenant's lease is terminated, but you are still entitled to collect damages from the former tenant representing the difference between the new rent and the old rent, if the new rent is less.


Q: Three friends and I want to rent an apartment, but the landlord wants only one of us to sign the lease and pay the rent. Shouldn't we all be on the lease?

Not necessarily.  For a new tenancy, if a landlord wants to recognize only one person as the tenant, that is the landlord's right.  However, under Rent Board Regulation 1013(O), if the landlord puts only one tenant on the lease but authorizes more than one tenant in the unit, all those who occupy the unit within one month, with the landlord's express or implied permission, are considered original occupants. And, the landlord may not set a new rent until all the original occupants have vacated the unit.  Finally, under the Berkeley Rent Ordinance, if the named tenant leaves, the remaining original occupants may be evicted only for cause.


Q: I began renting a house under a one-year lease in October 1999. The lease is about to expire, and my landlord is asking me to commit to another one-year lease. I told her that I would rather sign a six-month lease or begin a month-to-month agreement. Her reply was that she is offering a one-year lease and I can either sign it or move out. Is that legal?

Yes, your landlord can insist that you renew a lease that is substantially identical to your previous lease, and your refusal to do so could provide your landlord with grounds to terminate your tenancy. You should also be aware that California state law now exempts single-family homes with tenancies that began in or after 1996 from rent-ceiling restrictions. For these units, there is no limit to the amount landlords may impose. Landlords are still required to serve a written, 30-day notice before increasing the rent, but your only recourse would be to negotiate an affordable rent or terminate your tenancy if the increase is beyond your budget.


Q:  I had a contract to rent a room in a student rooming house from August 1999 to August 2000. I had to prepay my rent for the year, as well as a $500 security deposit. In May of 2000 I graduated from U.C. Berkeley and moved out of the city. The landlord told me I could not cancel my contract, but that I might find a subletter. I found someone to sublet my room starting in June. I left the country for a month and now I find out that my landlord disallowed the sublet. However, the landlord moved someone else into my room during the month of July. What rights do I have to get my money back?

While you are responsible for fulfilling the lease agreement, if you find that you cannot complete the term of a lease and do move, your landlord is obligated to make every effort to mitigate damages by finding a tenant as quickly as possible at a comparable rent level. If you believe that your landlord unreasonably rejected the subtenant you found, you may be entitled to recover the rent you paid for the period beginning in June. If the landlord's rejection of the subtenant you found was reasonable, but he rented the unit in July for the same rent that you paid, you would be entitled to the rent you paid for the period beginning in July. Under these circumstances, you would be better served by filing a petition in Small Claims Court rather than with the Rent Board.


Q: Last May, I moved into a three-bedroom house.  At that time, the current tenant told me I did not need to be on the lease.  He had moved in five months earlier and said he wanted his to be the sole name on the lease.  Now he is insinuating that he wants a friend of his to move in and take my place.  I spent a lot moving in, paid him for my part of the deposit, and am meeting all of the requirements of a good roommate.  Does he have any power over my rights to live in the house?

In Berkeley, tenants in non-exempt rental units, including subtenants, can only be evicted for one of the good causes specified in the Berkeley Rent Ordinance.  The desire of a master tenant to replace a subtenant with a friend is not one of the enumerated good causes. 

The 12 good causes for eviction, in brief, are as follows: (1) non-payment of rent; (2) repeated violations of the material terms of the rental agreement; (3) willfully and/or repeatedly causing or allowing damage to the unit and refusal to pay for required repairs; (4) refusal to sign a new lease that is substantially identical to the previous lease; (5) repeated disturbance of the peace and quiet of other tenants of the building or occupants of the unit; (6) refusal to allow the landlord access to the unit; (7) eviction necessitated due to the need to perform extensive repairs in the unit, repairs for which permits are required and obtained; (8) eviction necessitated by the landlord=s decision to demolish the unit (again, permits must be obtained); (9) owner occupancy (by an owner of 50% or more of the unit or by said owner=s spouse, child or parent); (10) an owner or master tenant=s desire to move back into the unit in accordance with the rental agreement in effect with the current tenants; (11) the tenant=s refusal to vacate temporary housing provided by the landlord after repairs to his/her former unit have been completed; (12) engagement in or allowance of unlawful activity on the premises.

For a more detailed definition of one or more of the good causes, you can call the Rent Board offices and speak with a housing counselor, request a copy of the Ordinance by phone or read the Ordinance at our web site.


Q: When my tenant signed his lease, he agreed to pay the rent I set even though he knew it was higher than the rent ceiling.  Now he says he didn’t know the rent ceiling until after he moved.  He lived there for several years, more than enough time to find out the rent ceiling.  Can he even file a claim?  Can I just ignore this and wait for the statute of limitations to expire? 

A tenant may not waive his or her rights under the Rent Ordinance.  Even if the tenant initially agrees to pay more than the lawful rent ceiling, he or she may still request a refund of rent overcharges.  Refunds are generally limited to overcharges collected up to three years prior to the date the tenant files a petition with the Rent Board.  (See Regulation 1271.)  A former tenant must file a petition within one year of the date he vacated the unit.  (See Regulation 1206(D).)


Q:  How long is a guest legally allowed to stay with a tenant?

The length of time a guest may live with a tenant in a rental unit is usually controlled by the rental agreement or lease.  There are no laws that govern this issue.


Q:  My landlord informed me that I have to leave my apartment for several months because he is going to renovate the apartments in my building.  He also said that if we wanted to come back, we’d have to sign a lease.  Our lease expired a long time ago and we’ve been renting under a month-to-month agreement ever since.  What are my rights in this matter?

A landlord may, after having obtained all necessary permits, evict a tenant in order to undertake substantial repairs that cannot be completed while the tenant resides on the premises.  The repairs must be necessary to bring the property into compliance with applicable codes and laws affecting the tenants’ health and safety or to correct outstanding code violations affecting the tenants’ health and safety.  A tenant who is evicted because of substantial repairs to his/her unit is generally entitled to relocation costs and must be given the right of first refusal to re-occupy the unit when the work is completed.  If your tenancy is month-to-month now, you cannot be required to sign a lease when you move back into the unit.


Q: The lease for my present apartment ends at the end of this year (December 1998). I wish to continue living at my present apartment. Is my landlord required to sign a new lease with me? My fear is, with rent control changing, my landlord will force me to leave by refusing to sign a new lease, in order to reset the rent.

Under Berkeley's Rent Stabilization Ordinance, tenancies can only be terminated for cause, such as non-payment of rent or breach of the lease. At the conclusion of a lease running for a set term, the landlord can renew on the same or substantially the same terms, or the lease reverts to a month to month tenancy on the same terms. The landlord cannot change the terms of the lease unilaterally and cannot force a tenant to leave except for cause. Finally, your landlord cannot raise your rent above the lawful rent ceiling for any reason, even as a condition of signing a new lease.


 Q: I know I need to give my landlord 30 days written notice when I plan to move, but do I have to move at the end of the month?

You can move at any point in the month. Your landlord will simply prorate your last month's rent according to the number of days you spend in the unit. This is done by dividing the monthly rent by the number of days in the specific month and then multiplying by the number of days up to and including your final moving date.


 Q: My house mates and I have a lease that says the rent is due by the first of the month and that late fees will be charged if the rent is paid even one day late. However, we recall hearing that in Berkeley, tenants have a five day grace period during which to pay rent. Are we correct?

No, the law does not impose a grace period from late charges for paying the rent after the due date. If the lease states that the rent is due on the first of the month, it is due on the first of the month.

The more important question is whether it is legal in the first place to collect a fee for the late payment of rent. Such charges are permissible if the lease in effect on your unit in 1980, when the Rent Ordinance was adopted, provided for a monetary penalty for the late payment of rent. Assuming the late fee is legal, it must also be reasonable, for example, meant to cover the landlord's damages.


 Q: I live in a three-bedroom apartment with two roommates. I have lived at this address for about two years, but my name is not on the original rental agreement. The roommate who did sign the original rental agreement has decided to move at the end of the month. My landlord told us that everyone has to move out when the person who signed the lease moves out, and that he will try and evict us if we do not leave. My landlord cannot do this, right?

You cannot be required to move when your roommate leaves. You also do not need to sign a new lease to be a valid tenant. And if you do sign a lease, it should not be substantially different from the lease currently in effect. Your landlord cannot evict you under these circumstances.

Perhaps a more important question, however, is whether your landlord can raise the rent when your roommate moves. From your inquiry, it appears as if several tenants originally signed the lease and, over the years, all have left but your roommate. If this is the case, a "vacancy"" will occur when your roommate leaves. If the vacancy occurs after January 1, 1999, your landlord may give you a 30 day notice of a rent increase and raise the rent to market level. If this does happen, you should insist on signing a new lease to insure that another such "vacancy" does not occur until after you and your current roommates vacate the unit.


 Q: I signed a lease that committed me to live at my current residence for only one year. The lease expires in July. Is there any way I can stay in my current residence even though the lease said I'd be moving at the end of one year?

A tenant in Berkeley may be evicted or otherwise required to vacate his or her apartment only for "good cause". The good causes for eviction are enumerated in the Berkeley Rent Ordinance. Expiration of a lease does not constitute good cause. Thus, you will not be required to leave your current residence in July unless you want to. Your landlord may ask you to sign another one year lease. If you do not sign a new lease, your occupancy continues on a month-to-month basis. The terms will be the same as the prior lease.


Q: My lease expires at 6:00 p.m. on July 15, 1999. May my landlord raise my rent after that date and time?

If your unit is covered by rent control, the answer is No. The landlord cannot raise the rent just because the term of the lease has ended. Under the Rent Stabilization Ordinance, once the rent has been set, it can't be raised without Board authority. Usually the Rent Board authorizes an Annual General Adjustment in January of each year. The landlord must file a petition with the Board and receive authorization for any other adjustment.

In addition, the landlord can't force you to leave just because your lease is over. Under the Rent Stabilization Ordinance, tenants can only be evicted for a good cause, like non-payment of rent or breach of the lease. They cannot be evicted at the end of a lease term. Nor can they be evicted for refusing to sign a new lease unless the new lease contains provisions that are "substantially identical" to the previous agreement. This means that the landlord cannot force you to accept a new condition that wasn't in the old lease, like a limitation of subletting, or new quiet hours.

The rules may be different for a unit that is exempt from Rent Control. If you are not sure, please contact the Rent Board.


 Q: My husband and I are living in an in-law apartment on the ground floor of a house. Our landlords live in the house above. Our lease expires in a month and we intend to renew for another year. Our landlords have informed us that they are going to raise our rent by $60. Is that legal?

If the unit is covered by rent control, the landlord may not raise the rent without Rent Board authority as long as you live there. This is not true, however, if the unit is exempt. The Rent Ordinance exempts units in two-unit properties if one of the units is occupied as the principal residence of an owner who holds a 50% recorded interest in the property, as long as one of the units was similarly owner occupied on December 31, 1979, that is, occupied by an owner with a 50% recorded interest as his or her principal residence. If this is the case with your unit, your landlords can raise your rent by $60.


 Q: My son is trying to decide if he should sign a lease or go with a month-to-month rental agreement. Without a lease, would it be possible for his landlord to raise the rent every month?

The normal rule under rent control is that a landlord may only raise the rent with Rent Board authorization, either by filing an individual rent adjustment petition, or by implementing the Annual General Adjustment (AGA). This is true for a fixed-term lease and a month-to-month rental agreement. One difference between a lease and a month-to-month agreement is, under most leases, the rent can only be raised at the expiration of the lease term. While an AGA could be implemented on January first under a month-to-month agreement, that same AGA could not be implemented until, for example, June first under a lease that expired on May 31st. The other difference is that under a lease, the tenant is liable for the rent if he decides to leave before the expiration of the lease term. The landlord cannot, however, allow the unit to sit vacant until the lease expires. He or she must attempt to mitigate damages by seeking a new tenant.


Q: My husband and I rent a single family house in Berkeley. Our lease runs through February 2000. The owner is planning to sell the house. If the house is sold before our lease expires and the new owner wants to live here, can the new owner evict us before February, or would he or she be bound by our existing lease?

The point of having a written lease is to protect the landlord and tenant from undesirable changes during the term of the lease. Unless otherwise provided in the lease, Berkeley tenants may only be evicted for good cause. While owner move-in is one of the good causes stated in the Ordinance, you nevertheless cannot be asked to leave until your lease expires. You should also be aware that the mere expiration of a lease is not good cause for eviction. If the lease is not renewed, your tenancy becomes a month-to-month rental. In that case, you would be given a 30-day notice of the new owner's intent to occupy the house.


Have a question?  E-mail us at rent@ci.berkeley.ca.us