The Berkeley Rent Board Mailbag

Landlord Rights & Responsibilities

Q: I just moved into a new rental unit, and my telephone connection is not working. I tested my phone, and then called SBC to test the outside wiring, and they concluded that it must be the internal wiring.  They said it would cost over $150 for them to come out, identify, and fix the problem. Is this my responsibility or the landlord's?  (June 2004, updated November 2006)

California Civil Code section 1941.4 states that landlords are responsible for installing a basic working phone jack in each rental unit and for maintaining the inside wiring in good working order.  This applies only to a single working phone jack.  If you wish to have more than one working jack, then you would be responsible for any additional work done by the phone company.  

Q: My landlord wants to renovate my bathroom and says it will take 7 days. It's my only bathroom, so I won't be able to stay here during that time. If I have to stay in a motel, can I ask my landlord to pay for it?  (August 2004)

If the landlord is making repairs that are necessary to bring the unit up to housing or fire code, you would be entitled to a relocation payment. See the Berkeley Relocation Ordinance (Berkeley Municipal Code Chapter 13.84 et seq) or call the Housing Department at 981-5400 for more information about relocation. If the renovation is not required to bring the unit up to code, however, you should explain to the landlord that it will be virtually impossible for you to stay at the unit while the work is being done. You could suggest that the work be done while you are on vacation or that the landlord pay for you to stay in a motel or offer some other acceptable accommodation. If you are unable to reach an agreement, you can refuse to allow him/her access to do the work.

Q: I am new to Berkeley and Rent Control. Can you tell me how it works?  (July 2004)

Most residential rental units in Berkeley are under Rent Control; there are some exceptions, so you may want to contact our office to find out about a specific unit. Basically, the way it works is that a tenant rents a unit at a price set by the landlord at the beginning of a tenancy. That rental amount becomes what is called the "rent ceiling." Each year, the Board authorizes an Annual General Adjustment to the ceiling. Any other increases to the rent ceiling must be approved by the Rent Board through a petition process. In addition to controlling rent increases, the Board is designed to insure that tenants receive stable services, habitable units, and interest on their security deposits. Tenants who have complaints about the habitability of their unit or that the landlord has removed or decreased a service for which the tenant pays, may petition the Rent Board for a reduction to the rent ceiling.

Q: My landlord wants to remodel the bathroom in my apartment. I like it the way it is and don't want to have to deal with the intrusion, mess, and inconvenience of a remodel. Do I have to allow him to do this? (April 2004)

If the work he wants to do is required by code or is otherwise necessary, then you have to allow him to do the work. If the work is not required to bring the unit up to code or keep it up to code, you do not need to allow the remodel. You must allow the landlord to enter to make necessary repairs and to assess the need for repairs. See California Civil Code section 1954 for details about a landlord's right to enter a rented unit.

Q: My tenant never pays his rent on time. His lease authorizes a $20 late fee each month the rent is late. I never used to enforce the late fee, but in January I wrote him a letter stating that I would start to enforce it beginning with the February rent. Since then, his rent has been late twice, but he has not paid any of the late fees. How do I now enforce them? Can I evict him for non-payment of late fees if his rent is paid but the late fees are not? (April 2004)

Late fees must be stated in the lease and must be reasonable (probably not more than 4-6% of the monthly rent). However, they are not considered part of the rent, so you may not evict a tenant for non-payment if his rent is paid but fees are not. Your recourse is to write him a letter demanding payment of the late fees; if he does not comply, you can file suit in small claims court. Of course, whenever the rent is late, you can serve your tenant with a Three Day Notice to Pay Rent or Quit; if he doesn't pay within 3 days, you may proceed with the eviction action. You may also be able to serve him with a Notice to Perform Covenant or Quit, to recover the late fees or to evict for chronic lateness, but you should consult an attorney for more specific information about evicting the tenant.

Q: I am a Berkeley tenant with a month-to-month rental agreement. I plan to move out of my apartment in May, and I have several questions about the process. I'd like to leave on May 12th. Do I have to pay for the whole month of May? When do I need to give notice? (April 2004)

For a month-to-month lease, California Civil Code section 1946 requires you to give your landlord at least 30 days' written notice of the date that you will be moving out. So, if you plan to leave on May 12th, you must deliver the notice to your landlord in person on or before April 12th, or mail it at least 5 days before April 12th. (A letter is presumed to be received five days after it is mailed.) Assuming you honor the notice , you are only responsible for rent through May 12th

Q: I have a tenant who is paying very little in rent: $420 for a 1-bedroom apartment is the ceiling! Is there any way to raise her rent?  (October 2003)

A low rent such as this will usually qualify for an increase through a petition for Historically Low Rent. Because each situation is different, and the formula for computing increases can be a bit complex, we'd advise you to contact a Rent Board housing counselor for details. But, not knowing any other details and assuming the following are true, you could expect a rent ceiling increase of about $80: (a) the tenancy started before 1/1/99; (b) the unit has no serious code or habitability violations.

Q: My landlord is engaging in behavior that is effectively forcing me out of my apartment. He knows he does not have just cause to evict me because I always pay my rent on time and I don't disturb anyone, but he wants me out because he knows he could fix it up and get another $400-$500 per month in rent for the place. To this end, he has been working noisily around the apartment complex at all hours for over a month, and when I ask him how much longer he expects the work to continue, he says "maybe forever"; he opens the noisy garage door under my bedroom late at night and early in the morning even after I have asked him to fix it or not to open it at unreasonable hours; he basically does whatever he can to annoy me and drive me out of here. Is there any way to make him stop this harassing behavior?  (October 2003)

You are entitled to quiet enjoyment of your unit. And, if a landlord is in breach of that entitlement, you may have some recourse. The first thing to do is to contact the police to see if a restraining order would be advisable. Your landlord may be engaging in activity that could be eliminated or mitigated by such an order.
If a restraining order is not an option, or it does not prove successful, you may consider informing the landlord that if you are forced to move, then the consequences for him may be severe. If you can demonstrate that you are being "constructively evicted," that you are being forced to move by the consistent harassment of the landlord and that it is not a voluntary act on your part, then the Berkeley Rent Board has the authority to deem the impending vacancy non-qualifying for a Costa-Hawkins increase, which means that the landlord cannot set a new rent for the next tenant: the next tenant's rent will be the same ceiling that you had. If you can document to the Rent Board the behavior of the landlord prior to your moving out; the Board may notify the landlord that his behavior will likely result in a constructive eviction which will limit the next tenant's rent. This may discourage the landlord from continuing behavior that will not ultimately get him the result he desires: more rent money. Another method you could employ would be to sue the landlord for damages. You should contact an attorney to see if this is likely to prove worthwhile, but if you can show that your landlord has caused you undue suffering forcing you to move, and actual damages, say, if you had to move and your new rent were substantially higher than your previous, you may be entitled to compensation.

Q: My landlord frequently drops by without notice to maintain the garden. I appreciate the work he does, but I'd really like to know when he's coming so I know when I'll have my privacy, and when I can entertain in the garden. The other day I had some friends over for lunch and wanted to sit on the lawn and it was all wet from the sprinklers he had set up that morning. Can I ask him to inform me of when he's coming? (October 2003)

Although a landlord is not required to give notice of entry unless he is entering your unit, it is common courtesy to let you know when he'll be on the property, especially if it will impact your use of it. It is certainly reasonable to ask him to let you know in advance when he will be gardening. If he refuses, and it impairs your lawful use of the property, you may want to try to negotiate with him for a rent reduction; if the problem becomes intolerable, you may want to speak to an attorney about whether he has violated your privacy rights or caused you any compensable harm.

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: My tenants have recently asked me if I would reduce their rent because rents have been going down. If I do that, do I have to report the lower rent to you and does that lower amount become the new rent ceiling? (August 2003)

No. The rent ceiling is the amount you charged at the beginning of the tenancy. If you lower the rent during a tenancy, as long as it was not part of the initial agreement, it will not affect the rent ceiling. Since it has no effect on the ceiling, you do not need to report it. You can raise the rent back up to the ceiling later, consistent with your rental agreement, but, as with any rent increase, you need to give proper written notice.

Q: For the past couple of months my landlord has been renovating the unit behind mine, which has caused a considerable disruption in my ability to enjoy my apartment. There are workers walking past my living room and bedroom windows every day, many times a day. I haven't been able to use my patio because it's not a peaceful place with the construction activity occurring from early in the morning, all day and into the evenings, and even on holidays, when I had hoped to be able to entertain. Am I entitled to a rent reduction? Can I break my lease? (July 2003)

You are entitled to a rent reduction for the time that your use of your apartment and yard has been diminished. We recommend that you first try to reach an agreement with your landlord to limit construction days and hours to something you both can live with, and request a rent reduction for the inconvenience. If you cannot reach an agreement, then you may file a petition with our office. If you find you still cannot live with the disruption and are considering breaking your lease, you may wish to consult an attorney to discuss whether your landlord has violated your right to quiet enjoyment of your unit sufficient to warrant breaking the lease.

Q: My tenant seems to be operating a child care business from the apartment she rents from me. I rented to a woman with one child, but she seems to have 5 or 6 children there every day. Is it legal for her to be operating a business from this residential rental? I'm concerned about excessive wear and tear that 6 children will cause as opposed to one, as well as my liability if one of them gets hurt.  (July 2003)

In CA, family child care is considered a residential, not a business, use of a property [CA Health and Safety Code §1597.45]. CA law allows a licensed small family care provider to care for up to 6 children and a large family care provider to care for up to 12. The tenant is required to give you notice, generally 30 days in advance of the intended operation, but does not need your permission. Furthermore, a landlord cannot evict a tenant for operating a licensed child care program.

However, CA Health and Safety Code section 1597.40 (d)(4) allows a landlord to increase the security deposit on a unit being used for a child care program to the maximum allowed under state law, which is twice the monthly rent for an unfurnished apartment. If you are concerned about liability, CA Health and Safety Code section 1597.531 requires each licensed provider to obtain liability insurance or a bond, or to obtain an affidavit from each parent stating that he/she has been informed that the property owner's insurance may not cover losses in connection with the day care operation, unless those losses are caused by, or result from, an action or omission by the owner. If the day care provider has insurance, you may request, in writing, to be added as an additional, named insured on the policy, as long as it does not result in cancellation of the policy and you pay any additional premium..

For more information on the operation of family day care, you may contact the Child Care Law Center at 415 394-7144.

Q: I am a new tenant in Berkeley and I recently visited the Rent Board website for some general information. I was surprised to learn that I could type in my address and find out what my rent ceiling is. I was also surprised that the rent ceiling is listed at $920, but my rent is $1000. Does that mean I'm being overcharged?  (June 2003)

Not necessarily. If you are a new tenant, it's likely that your landlord has not reported your tenancy to us yet. A landlord is able to set a new initial rent, i.e., a new rent ceiling, whenever there's a new tenancy, provided the previous tenancy terminated voluntarily or the tenant was evicted as a result of his or her own actions. Most likely, whatever you agreed to pay for rent is the new rent ceiling. Once an initial rent is established between the parties, future changes are regulated by the Rent Stabilization Board. You can submit your information to the Rent Board on the website edit form so that staff can verify and enter the correct rent in the database.

Q: I'm new to Berkeley and am amazed at housing and rental prices here. What's even more amazing to me is that Berkeley supposedly has rent control. How can there be rent control in Berkeley if one-bedroom apartments rent for over $1000!!!?  (April 2003)

Since the Costa-Hawkins Rental Housing Act went into full effect in California 1999, landlords have been able to establish initial rents for new tenancies at whatever price the market will bear. Although the initial rent, i.e., the rent established at the beginning of a tenancy, is no longer limited, Berkeley's Rent Control still serves four main purposes:

1) It provides stable rents. Rent increases during the tenancy are controlled, so that a tenant renting initially at $1000 will not have to worry about unwarranted or unreasonable increases for the duration of the tenancy. 
2) It ensures stable services and habitable conditions. If a tenant initially rents an apartment that has off-street parking or laundry access, s/he can expect to continue to receive these services during their tenancy. If a service is discontinued, the tenant can petition for a rent reduction. Additionally, if a unit does not meet the "warranty of habitability" outlined in California Civil Code Section 1941.1, or in the local building code, e.g., if the heater is broken or the roof leaks, a tenant can petition for a rent reduction until the unit is repaired. 
3) It protects tenants against unfair or unwarranted evictions. A tenant can be evicted (forced to move out) only for good cause. There are 12 good causes for eviction, including nonpayment of rent, violating a material term of the rental agreement after receiving a written request to stop the violation, disturbing the peace and quiet of other occupants after receiving notice to stop, etc. 
4) It requires landlords to pay interest on tenants' security deposits. Landlords are required to place the deposit (which includes last month rent if collected at the beginning of the tenancy) in an interest bearing account and pay the interest accrued every December. If the tenant does not receive the interest by January 10th of the following year, s/he can deduct it from the rent at the rate of 10%.


Q: I heard new state laws affecting tenants and landlords take effect this year. Can you tell me about them? (January 2003)

Several new laws went into effect January 1, 2003. Those with the broadest impact concern security deposits, eviction notice periods, and notice for landlord entry.

Security Deposits The statute governing security deposits (Civil Code section 1950.5) has been amended to establish a procedure for informing departing tenants what they must do to avoid deductions from their security deposit. The law requires a landlord, at the tenant's request, to do a walk-through inspection of the unit no earlier than two weeks before the tenancy is to end. Based on the inspection, the landlord must prepare an itemized list of repairs or cleaning that the tenant must undertake before the end of the tenancy for the full deposit to be returned. These items are limited to deductions that allowed by the statute, for instance, damages beyond ordinary wear and tear. One of the allowable purposes for withholding from the security deposit is "cleaning the premises upon termination of the tenancy." The amended law elaborates on this standard for tenancies beginning on or after January 1, 2003: a deposit may be used for cleaning of the premises "necessary to return the unit to the same level of cleanliness it was in at the inception of the tenancy." Thus, it is now even more important for landlords and for tenants to document the level of cleanliness at the start of the tenancy. The new law also increases the amount of damages that may be awarded to tenants for a landlord's bad-faith claim or retention of the all or part of the deposit, from $600 to twice the deposit amount.

60-Day Notice Required for Some Evictions Most evictions that formerly required a 30-day notice now require a 60-day notice. Only 30 days' notice is required if: 1) the tenant has resided in the unit for less than a year; or 2) the unit is a single family home or condo, the owner is selling to a buyer who intends to reside in the unit for at least one year, and owner opened escrow no more than 120 days before the notice is given. (These are amendments to Civil Code section 1946.1.)

Notice of Entry Landlords must now give written notice of entry, except in an emergency. The law governing landlord entry, Civil Code section 1954, retains the requirement that notice must be "reasonable," and that 24 hours' notice is presumed reasonable. The new law adds that 24 hours' notice is reasonable if it is personally delivered or left on the front door. If notice of entry is mailed, it is presumed reasonable only if mailed at least six days before the intended entry. If the purpose of entry is to show the unit to a prospective buyer, notice may be oral if the landlord has, within 120 days, given the tenant written notice that the property is for sale and that the tenant might be given oral notice of entry to show the unit. Twenty-four hours' oral notice is presumed reasonable, and the owner or agent must leave written evidence of having entered.

Q: I have a terrible mold problem in my bathroom. I leave the window open when possible, but it's not safe to do that when I'm gone (I live on the ground floor). My landlord has refused to install a fan. Is he required to? What can do to get rid of the mold permanently?  (December 2002.) 

You cannot make your landlord install a fan, but you could purchase a fan yourself - it might even be something the landlord would pay for, especially if it remains with the apartment. As for cleaning, the best recommendation is to use a 10% bleach solution. It's not enough just to wipe the affected area with the solution - it has to remain in contact with the solution for 10 minutes or so, so it takes some diligence to actually kill the mold.

Mold needs water to grow. It especially likes dark and damp areas. So, to keep the mold from coming back, you have to reduce the water vapor in the bathroom - opening the window and the door, and running a fan to circulate the air are all good ideas. Bringing light to the area may also help, so open the curtains, if you have them.

You haven't mentioned your building's structure, but if there are leaks from rain or defective plumbing, the mold won't go away until the source of the water intrusion is addressed. These problems are the landlord's responsibility, so you should notify him if he's not aware of such a problem, or keep reminding him that he must make repairs.

For more information about combating mold, visit the Environmental Protection Agency website.

Q: Because landlords are required to install working smoke detectors, shouldn't they be responsible for maintaining them as well? I am a tenant, and I think I should be able to deduct the cost of replacing the batteries every year.  (December 2002.) 

Since 1987, state law has required landlords to provide operable smoke detectors at the beginning of all tenancies in multiple-unit buildings. Replacing batteries of smoke detectors in your unit is not the landlord's obligation, unless that's written into your rental agreement. You, as a tenant, must assume some responsibility for basic maintenance of your rental unit, which means keeping it clean and replacing, at your own expense, minor items with a naturally short life that wear out during your tenancy, such as light bulbs and batteries. On the other hand, if your smoke detector doesn't work even with a new battery, then notify your landlord, who must then repair or replace the smoke detector. Also, property owners are responsible for replacing the batteries of smoke detectors located in common stairwells.

Q: I am a new landlord in Berkeley and am overwhelmed by all the laws and regulations I have to learn. What's the best resource for me to find out what I really need to know?  (November 2002.)

The best resource for Berkeley rent laws is the Guide to Rent Control. It translates the Rent Ordinance (Berkeley Municipal Code, Chapter 13.76) into simple language, divided into five main topics: registration requirements, rent levels, subletting, security deposits, and evictions. You can access the Guide, as well as the Ordinance itself, on our website or pick up a copy at our office.

For landlord-tenant matters addressed by state law (such as what information must be included in a lease, how to serve an eviction notice, how to collect rent), we recommend California Department of Consumer Affairs publications and The Landlord's Law Book (Nolo Press). 

To access the text of laws, rather than interpretations of them, search for state statutes through the Legislative Counsel of California website. Many state laws governing rental property are located in Civil Code Sections 1940 through 1954.535.

Q: I am a tenant in a ground-floor apartment of a two-story building and am disturbed by sounds from the tenants in the apartment above. I don't think they're being especially noisy, but the shower wakes me at 5 a.m., they're doing dishes when I go to bed, and I hear everything in between, including footsteps and their television. I've explained my problem to them, and they try to be quiet, but I can't control when they arise or turn in, or stop normal and reasonable living activities that happen to disturb me. What can I do?  (October 2002.)

This is a difficult, though not uncommon, situation. If earplugs don't help and you really want to stay, ask the landlord if she's willing to install or let you install acoustic ceiling panels. She's not obligated to do or allow this, although if she has had problems keeping tenants in these units, it may be a worthwhile investment for her.

Another option is to request to be relocated to the next available second-floor unit, but you may have to rent it at market rate.

Q: I have questions about what I, as a landlord, am obligated to repair. One of my tenants, who has lived in her apartment for 15 years, wants me to repaint it, install new carpeting, and repair a cracked window. Am I required to do any of these things?  (September 2002.)

If the paint or carpets pose a health or safety hazard for instance, the paint is flaking or peeling, or the carpet is moldy or a trip hazard -- you may be in violation of housing codes or the implied warranty of habitability, and you must remedy these problems. Paint or carpets in a condition that do not threaten a tenant's health or safety may not have to be replaced.

Under Berkeley's Rent Ordinance, a tenant is entitled to stable services and conditions. If conditions in your tenant's unit have substantially deteriorated since she first rented it, she can file a petition for a rent ceiling reduction. "Substantial deterioration" means a noticeable decline in the physical quality of the rental unit resulting from a failure to perform reasonable or timely maintenance. After 15 years, the paint and carpet may have outlived their useful life, and if so, should be replaced. Depending on the actual condition of the paint and carpeting, the tenant may be granted a rent ceiling reduction for deterioration until these items are replaced.

A landlord is responsible for fixing a broken or cracked window, unless a tenant or his or her guest intentionally or carelessly broke it. So even if a vandal or a pebble kicked up from a passing truck is the culprit, the landlord must fix it. Under state law (Civil Code section 1941.1) landlords must maintain basic facilities, including windows and doors, in good repair, except for damage caused by the tenant or a guest (Civil Code section 1929). If the tenant or a guest was responsible for the crack, you may arrange and pay to have it fixed, and charge the tenant for the repair cost.

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 responded to an advertisement for an apartment for rent, but the owner told me she rents only to students. Can she do that?  (September 2002)

No. Refusing to rent to non-students is likely to be considered arbitrary discrimination that is prohibited by the state Unruh Civil Rights Act. Under the Unruh Act, a landlord cannot reject a potential tenant simply on the basis of the individual's class or group affiliation. If you think your rental housing application was rejected, or you were told you could not apply, for any reason that you think may be discriminatory, you should contact Housing Rights, Inc (510-548-8776) or the California Department of Fair Employment and Housing in Oakland (510-622-2945).

Q: I moved into my apartment two years ago. One of its features was the privacy afforded by all the shrubs and trees between my windows and the walkway to the apartments next door. My landlord has had all the shrubs and trees cut way back, citing high water bills and maintenance costs. Now everyone walking by can see into my entire studio. Am I entitled to any compensation for this new lack of privacy and the destruction of my garden setting?  (August 2002)

Possibly. The privacy provided by the shrubs most likely is a housing service included in your rent. In other words, you would not have agreed to pay the rent you do if the unit had lacked the privacy provided by the shrubs. Because the service has been removed, you could file a petition with the Rent Board for a rent reduction. A rent reduction, however, would not return your privacy. Therefore, your best option is to talk to your landlord about possible solutions to this problem. If high water and maintenance costs are the issue, you might be able to restore your privacy with low maintenance, drought resistant plants. Or, maybe a fence or trellis is the solution. If you cannot work out a satisfactory solution, then you should file a petition for a rent reduction.

Q:  My landlord told me the City of Berkeley requires him to come in and inspect my apartment every year. Is this true?  (June 2002)

Probably. The Rental Housing Safety Program (RHSP), run by the City's Housing Department, was established last July. It requires owners of most rental properties to inspect their units and submit a completed Owner Certification Checklist each year; the first is due by July 1, 2002. As with any inspection, the landlord must give "reasonable" notice, presumed to be at least 24 hours, before entering.

Among the units exempt from the certification process are Section 8 units and units constructed within the past five years. Also, if a unit is inspected by a City housing inspector on or after January 1, 2001, and is cleared of all violations, the unit is exempt from certification for three years.

The RHSP is designed to help prevent deaths, injuries, and illness from unsafe housing conditions. Thus, owners must certify that their units meet certain safety standards, such as having a smoke detector, correct locks, operable windows, proper electrical wiring, working heating systems and appliances, and unobstructed exits.

Tenants also have responsibilities: they must not alter the property in a way that creates safety hazards and must be mindful of potential hazards. Tenants should review the owner's certification (which the owners must give the tenant), and tenants who do not receive a copy or do not agree with the certification should notify the Housing Department. A tenant who believes at any time that health or safety code violations exist shouldn't wait for the owner's inspection for certification, but should notify the landlord right away, preferably in writing. If the landlord takes no action, the tenant should request an inspection from the Housing Department's Code Enforcement staff.

For more information and copies of the certification forms, visit the RHSP website or call 981-5445.

Q: I heard recently that, as a landlord, I am supposed to disclose information to tenants about lead paint. I don't even know if there is lead paint in my apartment building. Can you tell me more about how I can find out and what I'm supposed to do?  (June 2002)

Federal law requires all residential landlords to provide prospective tenants with the EPA booklet entitled "Protect Your Family From Lead In Your Home," and to provide a disclosure form for the tenants to sign that informs them either of any known lead-based paint in the property or that no testing has been done.
Lead paint was prevalent in dwellings built before 1978, which includes most properties in Berkeley. If you own such a building, and paint is chipping or will be disturbed during a renovation project, it is likely that you have or will have a lead paint health hazard. Lead poisoning can cause severe health problems and especially affects children under seven, so it is important to take proper steps to disclose and abate.

Alameda County's Lead Poisoning Prevention Program offers free testing, lead-safe painting preparation kits and classes on lead-safe remodeling. The program also lends vacuums with HEPA filters for vacuuming up lead particles after renovation. For more information, contact the County program at 510-567-8280 or on the web. Information is also available from the federal Environmental Protection Agency website, where you can find the pamphlet and a sample disclosure form to download.

Q:  Our landlord is slow to make repairs. Many of the things we can fix ourselves, like patching a hole in the screen door, replacing a kitchen faucet held in place with duct tape, and even rebuilding the rotting back steps. Can we go ahead and do these repairs ourselves and deduct our expenses from the rent?

If you think your landlord would rather have you make repairs so he doesn't have to bother with them, write a letter asking if he will allow you to do these repairs and deduct the costs from rent.

If he does not approve, consider whether you can proceed with the "repair and deduct" remedy provided in California Civil Code section 1942.

Use of this remedy is limited:

You must first give the landlord written or oral notice of the problem, and allow him or her reasonable time to make the repairs;
The problem must substantially violate the habitability standards defined in Civil Code sections 1941.1 (see below);
You must not have interfered with the landlord's attempt to fix the problem and the problem must not have been caused by tenants or their guests;
You may deduct no more than one month's rent at a time, and you may not use this remedy more than twice in twelve months.

We strongly advise that you give notice to your landlord in writing of the repairs needed, and keep a copy for your records. Provide a reasonable date by which he should make the repairs, and advise that you will make the repairs (or hire someone to do them) and deduct the cost from rent if he doesn't meet the deadline. The law presumes that 30 days is reasonable. If the problem is an emergency, such as flooding or a backed-up toilet, you will want to call the landlord immediately, but follow up that oral notice with a letter confirming your conversation. Also, it is reasonable to request that emergency repairs be fixed in less than 30 days.

If you or someone you hire does the work, we recommend that you photograph or videotape the problem before and after it is repaired. Once the work is completed, you may deduct the costs from the next month's rent. Be sure to send the landlord copies of all receipts.

As for the items you mentioned, a small hole in the screen door doesn't seem to warrant the use of repair and deduct, but your landlord should be willing to agree to let you make the repair and reimburse you for materials. The broken kitchen faucet and rotting stairs appear to be substantial violations; however, the cost to fix the stairs could exceed more than one months' rent.

Landlord responsibilities under Civil Code section 1941.1 You may use the repair and deduct remedy if your unit or building is substantially lacking one or more of the following:

Effective weatherproofing of roof and exterior walls, including unbroken windows and doors
Plumbing and gas facilities in good working order
Hot and cold running water and connection to a sewage disposal system
Heating facilities in good working order
Electrical lighting, wiring and equipment in good working order
Building and grounds free of debris, garbage, and rodents and other pests
Adequate number of garbage containers
Floors, stairways and railings maintained in good repair

For more information on using the repair and deduct remedy, contact the Repair and Deduct Self-Help Hotline at (800) 806-8111.

Q: Our landlady lives nearby and constantly stops by unannounced.  She seems well meaning, but we really don't want anyone coming over without calling first. What can we do?

I'm not sure what you mean by "stops by." If she enters your apartment without permission or without cause, then she is violating the law. California law states that a landlord can enter a rental unit only for the following reasons: 

In an emergency; 
When the tenant has moved out or abandoned the unit; 
To make necessary or agreed-upon repairs, decorations, alterations, or other improvements; 
To show the rental unit to prospective tenants, buyers, or lenders, or 
to provide entry to repair persons who are to perform work on the unit; or 
Under a court order.

Except in cases of emergency or abandonment, a landlord must give a tenant reasonable advance notice before entering, which is presumed to be 24 hours notice, and can enter only during normal business hours (generally, 8:00 a.m. to 5:00 p.m. on weekdays). You have the right to refuse entry if it is not for one of the specified reasons, and if notice is required but not given.

If your landlady just comes to the property or your doorstep without entering your apartment and you find this intrusive, you should ask her to stop. Ask your landlady politely to call before she comes by, and tell her you may not always have time for her. If the unwanted behavior continues, put your request in writing. If this doesn't take care of the problem, a lawyer can tell you if her actions rise to the level of harassment or breach of the covenant of quiet enjoyment (the right to enjoy your home free from interference by the landlord) implied in every lease.

Q: Two months ago I purchased a 4-unit apartment building. The tenants in apartment A now claim that they have been overcharged for the past year and a half. I haven't raised their rent since I bought it, but when I checked with the Rent Board, I was told their rent does exceed the lawful rent ceiling for the unit. If I simply continued collecting what the previous owner charged, without knowing it was illegally high, am I liable to the tenants for the overcharges? Am I responsible for the previous owner's overcharges?

You are liable for overcharges collected during your ownership, even if you weren't aware that the rent exceeded the ceiling. You are jointly liable with the former owner for overcharges he collected. If this matter is not resolved informally, the tenants may file a Rent Board petition for a refund of overcharges against you and the former owner. Since you are jointly liable, if the former owner ignores the petition, or if the tenants file against you only, and they prove their claim, you will be responsible for refunding the entire amount of overcharges. Your recourse against the former owner would then be to sue him for reimbursement of excess rent that he collected. By the way, most Berkeley realtors obtain rent ceiling information from the Rent Board before advising their clients to purchase investment property.

Q: I am a mortgage broker and I need to document for the lender the allowable rents for a property after the sale. This is the first transfer of this 12-unit building in decades, so the new mortgage will be about 30 times more than the previous mortgage. The current rents total about $7,400 per month, which is about what the new monthly payment will be before factoring in property taxes and insurance costs. What could the new owner charge upon purchase, and is there a schedule he must follow when implementing the increases?

The Berkeley Rent Stabilization Ordinance does not permit a new owner to automatically raise the rent ceilings for current tenancies when the property is sold. The rights and responsibilities of the new owners are the same as those of the previous owner. The Ordinance specifically states that a landlord's increased debt service resulting from the sale of property is not grounds for a rent increase if, when the landlord bought the property, he or she could have reasonably foreseen that the increased expenses would not be covered by the rent ceilings in effect. Moreover, mortgage principal and interest payments are excluded from the maintenance and operating expenses that a landlord may claim in a petition to raise rent ceilings to maintain net operating income. You might advise the prospective buyer to speak to a Rent Board counselor for information about other grounds for rent ceiling increases that may apply to this property.

Q: I am a landlord. Earlier this month, I received a 30-day notice from the tenants in one of my units. They rent on a month-to-month basis. If they vacate the unit on the 12th of next month, do they still owe rent until the end of the month?

Under California Civil Code Section 1946, tenants who rent on a month-to-month basis can terminate the rental agreement by serving their landlord with a written 30-day notice at any point during the month. The tenants' rental obligation ends on the final day of the period covered by the 30-day notice. So, for example, if your tenants notified you on the 13th of August, they may end their tenancy on September 12th, and assuming they vacate the unit by that date, are not financially responsible for rent for the rest of September.

Q: I recently had a clogged drain in my unit. The management company arranged to have a plumber come and clear the drain, but then they sent me the bill. Isn't it the landlord's responsibility to pay for drain clearing?

Civil Code section 1941.1 requires residential landlords to maintain the plumbing in good working order. Civil Code section 1929, however, provides that tenants may be responsible for damage they cause when they fail to exercise ordinary care. Therefore, responsibility for the plumbing bill will depend on the cause of the clog. For example, if a child flushed a toy down the toilet and it caused the drain to clog, the tenant would be responsible for the bill. On the other hand, if the drain clogged because of interference from tree roots, corroded pipes or misuse by previous tenants, then the landlord would be responsible. The plumber who made the service call should be able to identify what caused the blockage.

Q: My brother is completing his freshman year at U. C. Berkeley and just rented an apartment. His new landlady demanded a "nonrefundable" $500 deposit. Is that legal in Berkeley?

No. California Civil Code Section 1950.5(l) prohibits landlords from characterizing any security deposit, as "nonrefundable," and defines "security" as any payment, fee, deposit or charge, including an advance payment of rent. As the $500 qualifies as "security," the landlord must refund it at the end of the tenancy or use it only as reasonably necessary:

1. To compensate for the tenant's failure to pay rent; 
2. To repair damages to the premises other than for ordinary wear and tear; 
3. To clean the premises upon termination of the tenancy; and/or 
4. To pay for the tenant's failure to restore or replace personal property or appliances, if permitted in the rental agreement.

Prior to renting a unit, a landlord may request an "application screening fee" for the purpose of obtaining information about a perspective tenant, such as consumer credit reports. But again, state law (Civil Code section 1950.6(b)) limits an application fee to "the actual out-of-pocket costs of gathering information," which can include compensation to the landlord for time spent gathering such information. If the landlord does not actually check references or get a credit report, however, the fee must be returned. In 1997, the maximum application fee was set at $30.00. The law allows landlords to increase the maximum fee by Consumer Price Index, beginning in 1998. Therefore, today the landlord may charge approximately $40.

Q: I have a question about a built-in dishwasher that was in my unit when I moved in. When the dishwasher stopped working recently, the landlord refused to fix or replace it. He said he wasn't interested in dealing with dishwashers anymore. Isn't he obligated to fix the appliances in the unit?

It depends. If you moved into the unit on or after January 1, 1999, and the dishwasher was working when you moved in, the dishwasher is deemed a provided service that the landlord must maintain. If he refuses to repair or replace it, you may file a petition based on a reduction in housing services and your rent would be reduced accordingly. 

If you moved into the unit before January 1, 1999, and a working dishwasher was provided to the tenant in the base year (May 31, 1980, or the year the unit was first registered with the Rent Board), a working dishwasher would again be a required housing service. Similarly, if the landlord refuses to maintain the dishwasher, you may petition for a rent reduction. 

If you moved into the unit before January 1, 1999, and the landlord did not provide a working dishwasher in the base year and did not subsequently receive a rent adjustment to increase the rent for adding a dishwasher, then the landlord is probably not obligated under the Rent Ordinance to provide it.

Q: I am a new landlord in Berkeley. My question is, when my expenses are increased, such as the 3% garbage collection fee increase, can I pass that on, or do I just have to pay more out of pocket?

Initial rents can only be raised by the Annual General Adjustment (AGA) or by filing an Individual Rent Adjustment (IRA) petition. The AGA is the yearly rent increase that goes into effect each January first for all eligible units in Berkeley. The amount of the adjustment granted is based on increases in City of Berkeley property taxes, and increases in maintenance and operating fees. The grounds for filing a Landlord IRA petition are Capital Improvements, Increased Occupancy, Changes in Space or Services, Maintenance of Net Operating Income, Historically Low Rent, Low Rent Increases in Years 1976-1979 and Restoration of AGAs.

Each year, during the month of October, the Rent Board (Board) holds two public hearings to discuss and determine the amount of the upcoming AGA.  The public is invited to come to the meetings and address the Board.

Q: I recently purchased a small rental property and am about to start screening prospective tenants for the first time. Is there any information that I must disclose to a prospective tenant?

Federal law requires landlords to inform prospective tenants of any asbestos or lead paint hazards in the rental property. In addition, state law requires landlords to inform prospective tenants, in writing, if the property is within a mile of an abandoned or closed military base in which ammunition or military explosives were used. State law also requires landlords to inform prospective tenants of any arrangements where a tenant might end up paying for someone else's gas or electricity use (e.g., where one meter serves more than one unit, or where the tenant's meter also serves a common area). Furthermore, since July 1, 1999, every lease or rental agreement must inform the tenant that there exists a statewide database of the names of registered sex offenders, and that members of the public may contact the state's Department of Justice to inquire about a specific individual.

Q: What obligation does a landlord have to maintain tenant harmony?  My landlord is having difficulty keeping certain tenants from disturbing other tenants with late night noise.  Are there recommended steps for dealing with tenants who insist they aren't being too noisy despite another tenant's complaint? 

If you, the other tenant and the landlord are unable to reach a compromise concerning an acceptable noise level, you could try contacting Berkeley Dispute Resolution Services to see if they can assist you.  If the disturbances are particularly egregious and the landlord refuses or is unable to solve the problem, you may petition the Rent Board for a rent decrease.

Q:  What are my rights concerning eviction and what procedures must I follow if a tenant is late in paying the rent?

In Berkeley, a tenant may only be evicted for one of the enumerated good causes listed in the Rent Ordinance.  Non-payment of rent is one such good cause.  To begin an eviction, you must first serve the tenant a three-day Notice to Pay Rent or Quit.  If the tenant pays the rent within the three-day period, you cannot go forward with the eviction.  A landlord is not obligated to accept rent that is proffered after the expiration of a three-day notice;  acceptance of any or all of the rent due after the expiration of a three-day notice would preclude you from proceeding with the eviction.

Q:  I have an apartment to rent.  In my ad, can I say that I prefer renting to a professional person or a married couple only?

The Fair Employment and Housing Act prohibits housing discrimination on the basis of race, color, religion, sex, marital status, national origin, ancestry, familial status, disability and source of income.  The prohibition against discrimination on the basis of marital status means that a landlord cannot advertise a preference for nor refuse to rent to either married or unmarried tenants on that basis.

The prohibition against discrimination on the basis of “source of income” was added to the law, effective January 1, 2000.  “Source of income” means “lawful, verifiable income paid directly to a tenant or paid to a representative of a tenant.”  This means that, while a landlord may establish procedures to evaluate an applicant’s financial ability to pay rent and refuse to rent to someone with insufficient income or a poor credit history, the landlord may not advertise a preference for nor refuse to rent to a person based on their source of income (e.g., social security, public assistance, hourly wages) as long as the income is lawful.  Therefore, a landlord cannot restrict occupancy to only “professional” persons.

Q:  Can I refuse to rent to smokers?

Yes.  The fair housing laws do not specifically protect smokers, and addiction to nicotine does not qualify as a handicap for purposes of the laws protecting the rights of the disabled.   Although the California Supreme Court has ruled that the Unruh Civil Rights Act bars arbitrary discrimination on the basis of a person’s “personal characteristics” (e.g., hair style) or “personal traits,” and it might be argued that refusal to rent to smokers is this type of discrimination, it is unlikely that such an argument would be successful in court because there are valid business reasons for refusing to rent to smokers, e.g., concern for the health of other tenants, fire safety, lower insurance costs, reduced cleaning and maintenance expenses.   The federal Fair Housing Act, in fact, provides that a landlord is not required to rent to anyone whose tenancy would constitute a direct threat to the health and safety of others or pose a risk of damage to property.  As long as a no-smoker policy is applied uniformly, it is likely to be legal. 

Q:  Is the landlord responsible for painting the walls and shampooing the carpets before new tenants move in?

Under the state Civil Code, a landlord is required to put a rental unit in a condition that is fit for human occupation before the unit is rented.  The Code further states that a unit is untenable if it lacks weatherproofing, plumbing, electricity, heat or refuse removal.  The statute does not require a landlord to paint the walls or shampoo carpets before renting a unit.  For their protection, tenants should always take pictures to document the condition of a unit when they move in, because their obligation is to leave the unit in the same condition when they vacate.  In your case, the landlord would not be eligible to retain part of your security deposit for touch-up painting or shampooing the carpet.

Q:  What should I say to applicants whom I did not select to be tenants?  How can I tell people I didn’t choose them without getting into trouble?

Generally, a landlord is not required to give a rejected applicant an explanation for their not being selected. Under the Consumer Credit Reporting Agencies Act (Civil Code §§1785 – 1785.35), however, a landlord who rejects an applicant based on information received in a credit report must provide the applicant with:  (1) written notice of the rejection;  (2) the name, address and phone number of the credit reporting agency;  (3) a statement that the decision to reject was based, at least in part, on the information in the report and (4) a statement that the applicant has the right, within 60 days, to obtain a copy of the report and to dispute the accuracy or completeness of any information contained in the report.  Similarly, under the Investigative Consumer Reporting Agencies Act (Civil Code §§1786 – 1786.56), if an applicant is rejected based on information contained in a screening report, the landlord must inform the applicant that they were rejected for that reason and provide him or her with the name and address of the reporting agency.  If an applicant is rejected based on information received from a third party other than a reporting agency (e.g., previous landlord, personal reference), the federal Fair Credit Reporting Act (15 U.S.C §1681m) requires that the applicant be informed at the time of the rejection that he or she may, within 60 days, make a written request for disclosure of the nature of the information obtained from the third party.  Upon receipt of such a request, the landlord must disclose the nature of the information within a reasonable period of time.As protection against claims of housing discrimination, a landlord should establish a definite screening procedure and objective criteria for judging the qualifications of prospective tenants and apply them uniformly in a fair, reasonable, consistent manner.  You should have an objective, non-discriminatory method of choosing when you have a number of applicants who all meet your criteria (e.g., first to apply, highest income).  It is also advisable to keep good records of applicants and to document specifically why applicants were rejected so that you will be able to show valid business reasons for your decision.

Q: I am planning on making some extensive renovations on my property to improve the seismic safety and I want to know what type of notice I need to give my tenants before workmen can enter their apartments to do the work. Also, will I incur any liability for disturbing the tenants over the one-to-two months it will take to complete the work?

Civil Code section 1954 requires that you give your tenant reasonable notice of your intent to enter their apartments to make repairs or improvements. The statute states that 24 hours is presumed to be reasonable notice. You may enter only during normal business hours which are 8:00 a.m. to 5:00 p.m. Monday-Friday. Of course, you can enter a unit without notice in case of emergency. You can also make arrangements with individual tenants for entry upon less notice or at times other than during normal business hours, e.g., during the weekend or in the evening hours.
Your tenants are paying for the quiet enjoyment of their rental units. To the extent that the proposed work will interfere with this quiet enjoyment, they will be entitled to a rent reduction. You may work out the amount of the reduction with them. This may be difficult to do prior to the commencement of the work since the extent of the disturbance will be unknown. Nevertheless, it would be best for all parties to resolve this issue ahead of time. If you need help, you might consider having a Board Hearing Examiner mediate an agreement between yourself and your tenants.

Q: Is a landlord required to give a tenant an emergency phone number? We've had problems that have occurred on weekends and have had no way to call anyone until Monday morning.

Your landlord is required to provide you with an address where he or she may be served with legal papers. But there is no requirement that your landlord provide an after-hours telephone number.

Q: Our landlord insists on dropping by whenever he has something to tell us. I have no prior notice that he is coming over and find this practice very intrusive. What are the legal ramifications of this?

There is no law prohibiting your landlord from appearing at your door unannounced to talk to you. He must, however, give you 24 hour notice before he enters your apartment to make repairs or to show the premises to a potential buyer or renter.

Q: Is it legal to charge tenants for garbage pick-up fees in Berkeley?

If you moved into your apartment after January 1, 1999 and your lease states that garbage collection fees are the tenant's responsibility, then the charge is legal. If you moved in before 1999, then the charge is legal only if the garbage fee was the tenant's responsibility in 1980. (This is unlikely, since that particular fee was included on the owner's property tax bill in those days.) You should nevertheless come to the Rent Board Office and check the Initial Registration Statement in the property file for your unit to see if garbage collection was an included service in 1980.


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