The Berkeley Rent Board Mailbag

Landlord Rights & Responsibilities

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

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?

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?

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?

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: 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? 

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?

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: 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?

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: 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 $2,000!!!? 

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 $2,000 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: 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. 

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 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? 

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: 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: 

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 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: 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:  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: 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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