The Berkeley Rent Board Mailbag
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?
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?
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: 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?
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: 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?
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: I am a tenant and am wondering if subletting is legal in Berkeley?
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: 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?
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: 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: 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: 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: 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.
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