The Berkeley Rent Board Mailbag

Occupancy


Q: I have a tenant who has been subletting for about 4 years now. I still receive a check from her every month, but she hasn't lived there for some time and I do not believe she plans to reoccupy the unit. Do I have to accept the subtenant as my new tenant? Can I raise her rent?  (August 2004)

If the original tenant no longer permanently resides in the unit, California law (Costa-Hawkins) allows you to raise the rent on any remaining subtenants (Civil Code section 1954.53(d)(2)). The original tenant has not relinquished her right to return to the unit, however, so you should serve a notice of rent increase on the original tenant, with a copy to the subtenant. You should then file a Vacancy Registration (VR) form informing the Board of the new initial rent. Be aware that the original tenant has the right to challenge your assertion that the unit is no longer her principal residence through a formal process at the Rent Board.
While you don't have to accept the subtenant as your new tenant, she has the right to occupy the unit, which means that if she does not vacate the unit voluntarily she can be evicted only for good cause. If, as frequently happens, the original tenant relinquishes the unit, you have to decide how to deal with the occupant. As a practical matter, the former subtenant will become your tenant unless you have a substantial reason to dispute that. A landlord who feels a need to terminate the subtenant too should seek legal advice early in the process.


Q: Recently I found that my tenant had moved his girlfriend in with him. While I don't object to this, I wonder if she has automatically become a tenant or if I have any right to demand credit information from her or if I can charge more rent?  (August 2004)

As long as you do not accept checks directly from her or put her on the lease, she is considered a subtenant. A subtenant has no contractual agreement with the landlord; his or her rights and responsibilities derive from and are owed to the tenant. Nonetheless, you could demand credit information from her if your lease requires your approval for a sublet. Otherwise, you could demand credit information from her only if she became a tenant. If she became a tenant and her name were added to the lease, both she and her boyfriend would be responsible for the rent. She would then be considered an "original tenant," however, and you would not be entitled to implement a vacancy increase until both she and her boyfriend moved out.

A landlord may petition the Rent Board for a 10% rent ceiling increase for each additional occupant above the base occupancy level. For a tenancy that began on or after 1/1/99, the base occupancy level is the number of occupants allowed by the rental agreement at the beginning of the tenancy. For a tenancy that began before 1/1/99, the base occupancy level is the number of tenants allowed by the rental agreement or actually living in the unit between June 1, 1979 and May 31, 1980. Absent contrary evidence, the base occupancy level for a tenancy that began before 1/1/99 is presumed to be not less than one person per bedroom. So, if an additional occupant results in an occupancy level greater than the base occupancy level, you would be entitled to a 10% rent increase if you filed a Rent Board petition.

Please note that no rent ceiling increase will be granted for an additional occupant who is a spouse, registered domestic partner, parent or child of the original tenant unless the original tenant agrees in writing to the increase. Also, any increase that is granted may remain in effect only as long as there is an additional occupant in the unit. If the additional occupant were to vacate the unit, the rent ceiling would decrease accordingly.


Q: I am the sole tenant in a 2-bedroom apartment. My sister and her 3 kids come over almost every day to visit. Recently, my landlord told me I am having too many people over. Can he limit the number of visitors I have? They're not living here!   (July 2004)

You have a right to privacy in your own home. A landlord cannot generally limit the number of daytime guests you have unless they are disturbing the peace and quiet of other occupants. If that is the complaint, then he must be more specific and request that you reduce the noise.


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 own a 2-bedroom condo that I'd like to rent out. I want to limit the number of occupants to 2, to cut down on potential wear and tear and fees for water and garbage. Do I have the right to limit the number of occupants?  (July 2003)

There is no prohibition against limiting the number of occupants provided the purpose is not to discriminate on a protected basis. State and federal laws prohibit landlords from discriminating against families with children. Therefore, the number of occupants allowed in a unit may not be limited if the purpose is to discriminate against a family with children. Apart from this limitation, a landlord can generally establish the number of people he or she wants to rent to.


Q: I have a tenant who has not lived in his apartment for at least 3 years. He moved in about 8 years ago, and lived there when he went to school, but since then he took a job out East and basically leaves the unit sitting empty. He does store some stuff there, and continues to pay rent, but he does not live there. It seems a shame that this unit cannot be rented to someone who really needs a place to live, especially since it's near campus and ideal for students. Is there anything I can do about this?  (June 2003)

The Rent Board just passed a regulation that deregulates units that are held by tenants who are not occupants. A landlord who has a unit being held by a tenant who does not occupy the unit as his or her primary residence, can file a petition requesting deregulation of that unit (Regulations 524-525). The landlord would have to provide some evidence that the tenant does not live there, and no subtenants live there. Once a petition is filed and a hearing is scheduled, the burden of proof is on the tenant to show that that unit is his/her primary residence. If the hearing examiner determines that neither the tenant nor any subtenant occupies the unit as his/her primary residence, the rent for that unit will no longer be controlled. The landlord can then increase the rent as often and as much as s/he likes with proper notice. If the tenant vacates, the unit will be controlled again, though the landlord can set a new initial rent for a new tenant.


Q: My lease says two people may occupy my apartment, but I've always lived alone. Now I want to get a roommate, but my landlord is refusing. Can she do this?  (June 2003)

No. If two people are permitted by the lease, then you should be allowed a roommate. However, the landlord does have the right to ask for the proposed roommate's financial and rental history and deny a particular roommate if she has a reasonable objection.


Q: I rented an apartment to one person last August. In December, her parents came to visit, but they never left and have now been there for six months! I pay the water bill and have noticed a significant increase. I have asked the tenant to find alternative arrangements for her parents, but she wants them to stay. Can I increase her rent for the additional occupants, or, if need be, can I evict them?  (June 2002)

According to Rent Board Regulation 1270(B)(2), the rent ceiling cannot be increased for spouses, domestic partners, children, or parents of original tenants, unless the tenant agrees in writing to an increase. However, if your lease limits the number of tenants and prohibits additional occupants without your prior permission, then your tenant has violated a material term of the lease, which is grounds for eviction. If this is the case, you can give your tenant the choice to either agree to a higher rent for the additional tenants (up to 10 percent per person, as allowed under Regulation 1270), or face eviction proceedings.


Q: For the past year, I have paid the full rent for a two-bedroom apartment that I occupy alone. I had a roommate previously, and when he left, I signed a new lease for the same amount of rent that still allowed two people to live in the unit. I thought I read that I was obligated to pay only half the rent since I was missing a roommate. Is that correct, and does that mean I am entitled to a refund for the past year?

Assuming that your lease was signed on or after January 1, 1999, you would not be entitled to a rent reduction unless your landlord prevented you from replacing your roommate. If, for example, your landlord unreasonably rejected every replacement you suggested, then you may be eligible for a retroactive reduction and refund. If, however, you were unable to replace your roommate or simply chose to live alone, you would not entitled to a rent reduction.


Q:  In June of 1999, I moved into a two-bedroom apartment with three roommates.  We signed a one-year lease.  Now one of my roommates is moving out, but the rest of us want to stay in the unit.  Is the landlord required to reduce the rent for the three of us?

No, the landlord is not required to lower your rent if you decide to reduce the number of tenants.  You would be entitled to a rent reduction only if the landlord refused to allow you to replace a departing tenant.


Q: I live in a one-bedroom apartment and share it with a roommate. My landlord informed me recently that the rent would increase 10% because I had a roommate. He explained that if my roommate were a family member, no additional rent would be charged. Is there such a law or are such decisions left up to the discretion of the landlord?

Rent Board Regulation 1270 authorizes landlords a 10% increase for each additional tenant if the number of tenants occupying the unit exceeds the "base occupancy level." The base occupancy level is, in most cases, the number of tenants allowed to live in the unit between June 1, 1979 and May 31, 1980, or the highest number of tenants occupying the unit with the landlord's knowledge during the same period. In the absence of evidence to the contrary, the base occupancy level of a unit is presumed to be one tenant per bedroom.

Your landlord must petition the Board and receive authorization before increasing your rent. Such an increase will not be granted if the additional tenant is the spouse, domestic partner, child or parent of an original tenant, unless the original tenant agrees to the increase in writing.


Q: Is the landlord permitted to say how many people can live in an apartment?

There is no prohibition against limiting the number of adults provided the purpose is not to discriminate on a protected basis. State and federal law prohibit landlords from discriminating against families with children and landlords cannot limit the number of people in order to discriminate against a family with children. On the other end, the Housing Code limits the number of people per square foot.

Apart from those limitations, the landlord can generally establish the number of people he or she wants to rent to. The Rent Ordinance provides that the rent ceiling is based on the base occupancy level. If the tenancy began before January 1, 1999, the base occupancy is equal to the number of tenants who lived in the unit in May, 1980 (the "base year occupancy level"). Of course the landlord may allow additional tenants in the unit. In such a case, the landlord can petition the Rent Board for a 10% rent increase for each additional tenant. An increase is not allowed, however, for a spouse or child of the tenant. For tenancies that began after January 1, 1999, the base occupancy level is equal to the number of tenants authorized in the lease.


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